Exhibit 10.28


 


AMENDMENT
NO. 2, dated as of July 14, 2008 (this “Amendment
No. 2”), to the Credit Agreement dated as of November 30, 2006
(as amended prior to the date hereof, the “Credit Agreement”), among
SHUFFLE MASTER, INC. (the “Borrower”), DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender, the other Lenders party thereto from time to time,
DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent (the “Administrative
Agent”), DEUTSCHE BANK SECURITIES INC. and WELLS FARGO BANK, N.A., as joint
lead arrangers and book managers, and WELLS FARGO BANK, N.A., as syndication
agent.


 


A.                                   Pursuant
to the Credit Agreement, the Lenders have extended credit to the Borrower
pursuant to the terms and subject to the conditions set forth therein.


 


B.                                     The
Borrower has requested that the Required Lenders agree, subject to the
conditions and terms set forth in this Amendment No. 2, to amend the
Credit Agreement (i) to permit the Borrower to retire any or all of its
1.25% Contingent Convertible Senior Notes due 2024 in an aggregate outstanding
principal amount of $150,000,000 by repurchasing such Convertible Notes
pursuant to a tender offer or otherwise repurchasing, redeeming or retiring
such Convertible Notes in one or more transactions or as required upon exercise
of a holder’s option to require repurchase under the applicable provision of
the indenture governing the Convertible Notes, (ii) to provide for a term
loan facility in an aggregate principal amount of up to $80.0 million to
provide a portion of the funds required for such retirement, (iii) to
reduce the amount of available Incremental Commitments by an amount equal to
the aggregate principal amount of such term loan facility, and (iv) to
make additional changes to the Credit Agreement as provided herein.


 


C.                                     The
Borrower further has requested that the financial institutions identified on
Schedule I (the “Initial Term Lenders”) provide $60,000,000 under such
term loan facility.


 


D.                                    The
Required Lenders are willing to amend the Credit Agreement pursuant to the terms
and subject to the conditions set forth herein, and each Initial Term Lender is
willing to make term loans to the Borrower pursuant to the terms and subject to
the conditions set forth herein in the amount set forth for such Initial Term
Lender on Schedule I of this Amendment No. 2 in an aggregate principal
amount for all Initial Term Lenders equal to $60,000,000.


 


E.                                      Capitalized
terms used but not defined herein have the meanings assigned to them in the
Credit Agreement.


 


Accordingly, in consideration of the mutual
agreements herein contained and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, and subject to the
conditions set forth herein, the parties hereto hereby agree as follows:


 


SECTION 1.                                     Waiver
and Consent.  [Reserved.]


 


SECTION 2.                                     Amendments
to the Credit Agreement and Exhibits.


 

















 


(a)                          The
exhibits to the Credit Agreement are replaced with the exhibits attached hereto
as Annex A, and Schedule VI to the Credit Agreement is
replaced with Schedule VI attached hereto.


 


(b)                         Section 1.01
of the Credit Agreement is hereby amended to replace the corresponding
definitions with the following:


 


“Available Amount” shall
mean, at any time, the sum at such time of (a) (i) the aggregate
cumulative Excess Cash Flow (as defined in the Credit Agreement prior to giving
effect to Amendment No. 2) for the period beginning December 1, 2006,
through any such time on or prior to July 31, 2008, plus (ii) the
aggregate cumulative Excess Cash Flow (which, for the avoidance of doubt, shall
be as defined after giving effect to Amendment No. 2) for the period
beginning after July 31, 2008 through any such time on or prior to October 31,
2008, plus (b) anytime after the initial Excess Cash Payment Date,
for each Excess Cash Payment Period for which Excess Cash Flow was a positive
number, Excess Cash Flow for such Excess Cash Payment Period minus the
Excess Cash Payment Amount for such Excess Cash Payment Period, plus (c) the
Net Cash Proceeds from any capital contribution to, or any sale or issuance of
Equity Interests by, the Borrower received on or after the Effective Date
(other than the sale of Equity Interests by the Borrower occurring in connection
with Amendment No. 2), less, without duplication, (d) all cash
expenditures made by the Borrower and its Subsidiaries on or after December 1,
2006 to (i) pay Dividends or purchase Equity Interests pursuant to Section 10.03(vi),
(ii) make Investments pursuant to Section 10.05(xiii), and (iii) make
Permitted Acquisitions pursuant to the definition thereof and Section 9.13
(but only to the 


extent such Permitted
Acquisitions are made with the Available Amount component of the Permitted
Acquisition Basket Amount), and less (e) all voluntary and
scheduled mandatory prepayments of Term Loans made pursuant to Sections 5.01A
and 5.02A(a) at any time after the Amendment No. 2 Effective Date
(other than payments made with the proceeds of sales of fixed assets, equity
issuances, insurance or Indebtedness other than Loans).


 


“Borrowing” shall mean
the borrowing of one Type of Loan on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, provided that Base Rate Loans incurred
pursuant to Section 2.09(b) or Section 2.09A(b) shall be considered
part of the related Borrowing of Eurodollar Loans.


 


“Consolidated Interest
Expense” shall mean, for any period, (i) the total consolidated
interest expense of the Borrower and its Subsidiaries for such period
determined in accordance with GAAP (calculated without regard to any
limitations on payment thereof), adjusted to exclude (to the extent same would
otherwise be included in the calculation above in this clause (i)) (A) the
amortization of any deferred financing costs for such period and any interest
expense actually “paid in kind” or accreted during such period, and (B) all
fees and costs and other charges paid or incurred in connection with Amendment No. 2
or any Convertible Note Retirement, plus (ii) without duplication, (x) that
portion of Capitalized Lease Obligations of the Borrower and its Subsidiaries
on a consolidated basis representing the interest factor for such period and (y) the
“deemed interest


 


2

















 


expense” (i.e.,
the interest expense which would have been applicable if the respective
obligations were structured as on-balance sheet financing arrangements) with
respect to all Indebtedness of the Borrower and its Subsidiaries of the type
described in clause (vii) of the definition of Indebtedness contained
herein (to the extent same does not arise from a financing arrangement
constituting an operating lease) for such period minus (iii) for
any period on or prior to a Convertible Note Retirement of 100% of the Convertible
Notes, the amount of interest income earned on proceeds from the Term Loans and
the proceeds from the Equity Offering that are on deposit in the Special
Account; provided that in no event shall the amounts deducted pursuant
to this clause (iii) for any period exceed the amount of interest expense
of the Borrower and its Subsidiaries attributable to the Convertible Notes for
such period.


 


“Credit Documents” shall
mean this Agreement, the Guaranty, the Security Agreement and each other
Security Document, Amendment No. 2 and, after execution and delivery
thereof pursuant to the terms of this Agreement, each Note.


 


“Defaulting Lender”
shall mean any Lender with respect to which a Lender Default or Term Lender
Default is in effect.


 


“Dividend” shall mean,
with respect to any Person, that such Person has declared or paid a dividend,
distribution or returned any equity capital to its stockholders, partners or
members or authorized or made any other distribution, payment or delivery of
property (other than common Equity Interests of such Person) or cash to its
stockholders, partners or members in their capacity as such, or redeemed,
retired, purchased or otherwise acquired, directly or indirectly, for a
consideration any shares of any class of its capital stock or any other Equity
Interests outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock or other
Equity Interests) or shall have permitted any of its Subsidiaries to purchase
or otherwise acquire for a consideration any shares of any class of the capital
stock or any other Equity Interests of such Person outstanding on or after the
Effective Date (or any options or warrants issued by such Person with respect
to its capital stock or other Equity Interests).  Without limiting the foregoing, “Dividends”
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes. 
Notwithstanding the foregoing, no Convertible Note Retirement shall
constitute a “Dividend”.


 


“Equity Interests” of
any Person shall mean any and all shares, interests, rights to purchase,
warrants, options, participation or other equivalents of or interest in
(however designated) equity of such Person, including any preferred stock, any
limited or general partnership interest and any limited liability company
membership interest but, in the case of the Borrower, does not include the
Convertible Notes.


 


“Equity Offering” shall
have the meaning given such term in Amendment No. 2.


 


“Excess Cash Flow” shall
mean, for any period ending on or prior to July 31, 2008, the definition
in the Credit Agreement prior to the Amendment No. 2 Effective


 


3

















 


Date, and for
any period beginning after July 31, 2008 and ending on or prior to October 31,
2008 and for any Excess Cash Payment Period, the remainder of:


 


(a) the sum of, without
duplication, (i) Adjusted Consolidated Net Income of the Borrower and its
Subsidiaries for such period and (ii) the decrease, if any, in Adjusted
Consolidated Working Capital of the Borrower and its Subsidiaries from the
first day to the last day of such period, minus


 


(b) the sum of, without
duplication, (i) the aggregate amount of all Capital Expenditures made by
the Borrower and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, asset sale proceeds,
insurance proceeds or Indebtedness (other than Revolving Loans and Swingline
Loans)), (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease Obligations
of the Borrower and its Subsidiaries during such period (other than (1) repayments
made with the proceeds of sales of fixed assets, equity issuances, insurance or
Indebtedness other than Loans and (2) payments of Loans and/or other
Obligations), (iii) the increase, if any, in Adjusted Consolidated Working
Capital of the Borrower and its Subsidiaries from the first day to the last day
of such period, (iv) the aggregate amount of all cash payments made in
respect of all Permitted Acquisitions consummated by the Borrower and its
Subsidiaries during such period (other than (x) any such payments to the
extent financed with the proceeds of sales of fixed assets, equity issuances,
insurance or Indebtedness other than Loans or (y) any such Permitted
Acquisitions made pursuant to the Available Amount component of the Permitted
Acquisition Basket Amount), (v) all cash payments made by the Borrower and
its Subsidiaries in such Excess Cash Payment Period on account of any item for
which a non-cash charge or non-cash loss was recorded in their financial
accounting records for a prior period and (vi) the amount of Net Cash
Proceeds which are mandatorily prepaid or reinvested pursuant to Sections 5.02A(c) and
(d) (or as to which a waiver of the requirements of such Sections
applicable thereto has been granted under Section 13.12) prior to the date
of determination of Excess Cash Flow for such Excess Cash Payment Period as a result
of any Asset Sale or Recovery Event (to the extent such Asset Sale or Recovery
Event would result in an increase to Consolidated Net Income and not in excess
of such increase) or that would have constituted Net Cash Proceeds except for
the operation of any of the Dollar thresholds set forth in Section 5.01A(c) and
the Dollar thresholds set forth in Section 5.01A(d).


 


“Incremental Commitment
Request Requirements” shall mean, with respect to any request for an
Incremental Commitment made pursuant to Section 2.13, the satisfaction of
each of the following conditions on the date of such request:


 


(1)                                  no
Default or Event of Default then exists or would result therefrom (for purposes
of such determination, assuming the relevant Loans in an aggregate principal
amount equal to the full amount of Incremental Commitments then requested had
been incurred, and the proposed Permitted Acquisition (if any) and/or debt
repayment or retirement to be financed with the proceeds of such Loans had been
consummated, on such


 


4

















 


date), and all
of the representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects on such date (unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date); and


 


(2)                                  the
Credit Parties shall be in compliance with the covenants contained in Section 10.08
and 10.09 (determined as if a Test Period is then in existence), calculating
the covenants therein based on the four fiscal quarter period ended with the
last fiscal quarter for which financial statements have been delivered pursuant
to Section 9.01(a) on or prior to the date of the request for
Incremental Commitments, on a Pro Forma Basis, as if the relevant Loans to be
made pursuant to such Incremental Commitments (assuming the full utilization
thereof) had been incurred, and the proposed Permitted Acquisition (if any)
and/or debt repayment or retirement to be financed with the proceeds of such
Loans (as well as other Permitted Acquisition theretofore consummated after the
first day of such four fiscal quarter period) had occurred, on the first day of
such four fiscal quarter period.


 


“Incremental Commitment Requirements”
shall mean, with respect to any provision of an Incremental Commitment on an
Incremental Commitment Date, the satisfaction of each of the following
conditions on or prior to such Incremental Commitment Date:


 


(1)                                  no
Default or Event of Default then exists or would result therefrom (for purposes
of such determination, assuming the relevant Loans in an aggregate principal
amount equal to the full amount of Incremental Commitments then provided had
been incurred, and the proposed Permitted Acquisition (if any) and/or debt
repayment or retirement to be financed with the proceeds of such Loans had been
consummated, on such Incremental Commitment Date), and all of the
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects on such date (unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date);


 


(2)                                  the
Borrower and its Subsidiaries shall have delivered such amendments,
modifications and/or supplements to the Security Documents as are necessary, or
in the reasonable opinion of the Administrative Agent desirable, to insure that
the additional obligations are secured by, and entitled to the benefits of, the
Security Documents;


 


(3)                                  calculations
are made by the Borrower demonstrating compliance with the covenants contained
in Sections 10.08 and 10.09 (determined as if a Test Period is then in existence),
calculating the covenants therein based on the four fiscal quarter period ended
with the last fiscal quarter for which financial statements have been delivered
pursuant to Section 9.01(a) on or prior to the date of the request
for Incremental Commitments on or prior to such Incremental Commitment Date, on
a Pro Forma Basis, as if the relevant Loans to be made pursuant to such
Incremental Commitments (assuming the full utilization thereof) had been
incurred, and the proposed Permitted Acquisition (if any) and/or debt repayment
or retirement to be financed with the proceeds of such Loans (as well as


 


5

















 


other
Permitted Acquisition theretofore consummated after the first day of such four
fiscal quarter period) had occurred, on the first day of such four fiscal
quarter period;


 


(4)                                  the
delivery by the Borrower to the Administrative Agent of an officer’s
certificate executed by the chief financial officer of the Borrower and
certifying as to compliance with preceding clauses (2) and (3) and
containing the calculations (in reasonable detail) required by preceding clause
(3);


 


(5)                                  the
delivery by the Borrower to the Administrative Agent of an acknowledgement in
form and substance reasonably satisfactory to the Administrative Agent and
executed by each Guarantor, acknowledging that such Incremental Commitment and
all Loans subsequently incurred pursuant to such Incremental Commitment shall
constitute (and be included in the definition of) “Obligations”;


 


(6)                                  the
delivery by the Borrower to the Administrative Agent of an opinion or opinions,
in form and substance reasonably satisfactory to the Administrative Agent, from
counsel to the Credit Parties reasonably satisfactory to the Administrative
Agent and dated such date, covering such of the matters set forth in the
opinions of counsel delivered to the Administrative Agent on the Initial
Borrowing Date pursuant to Section 6.02 as may be reasonably requested by
the Administrative Agent, and such other matters incident to the transactions
contemplated thereby as the Administrative Agent may reasonably request;


 


(7)                                  the
delivery by each Credit Party to the Administrative Agent of such other
officers’ certificates, board of director (or equivalent governing body) resolutions
and evidence of good standing (to the extent available under applicable law) as
the Administrative Agent shall reasonably request; and


 


(8)                                  the
completion by each Credit Party of such other actions as the Administrative
Agent may reasonably request in connection with such Incremental Loan Commitment.


 


“Indemnifiable Taxes”
shall mean all Taxes other than (i) net income taxes, franchise taxes
imposed in lieu of net income taxes or similar taxes imposed on or measured by
net income that are imposed on or levied on the Administrative Agent or a
Lender as a result of a present or former connection between the Administrative
Agent or the Lender and the jurisdiction of the governmental authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Administrative Agent
or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement); and (ii) except as
provided in Section 13.04(b), any withholding tax that is imposed on
amounts payable to a Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new lending office) or is attributable to a
Lender’s failure or inability to comply with Section 5.04(b) or Section 5.04A(b) other
than as a result of a Change in Tax Law after the Lender became a party hereto.


 


6

















 


“Lenders” shall mean
each financial institution listed on Schedule I to this Agreement or Schedule I
to Amendment No. 2 or that signs a Joinder Agreement to provide a Term
Loan, as well as any Person that becomes a “Lender” hereunder pursuant to Section 13.04(b).


 


“Loans” shall have the
meaning provided in Section 2.01(a), except that for the purposes of this Section 1
and Sections 6 through 13, the term “Loans” shall mean the Revolving Loans,
Swingline Loans and Term Loans, collectively, and “Loan” shall mean any of
them.


 


“Minimum Borrowing Amount”
shall mean (i) for Revolving Loans, $1.0 million, (ii) for Term
Loans, $1.0 million and (iii) for Swingline Loans, $250,000.


 


“Note” shall mean each
Revolving Note, each Swingline Note and each Term Note.


 


“Required Lenders” shall
mean, at any time, Non-Defaulting Lenders the sum of whose outstanding
Revolving Loan Commitments and Term Loans together represents a majority of the
sum of all outstanding Revolving Loan Commitments and Term Loans of
Non-Defaulting Lenders.


 


“Total Leverage Ratio”
shall mean, on any date of determination, the ratio of


 


(x)                                   Consolidated
Indebtedness on such date minus, for any date on or prior to May 31,
2009, Dedicated Cash on such date, to


 


(y)                                 Consolidated
EBITDA for the Test Period most recently ended on or prior to such date; provided
that for purposes of any calculation of the Total Leverage Ratio pursuant to
this Agreement, Consolidated EBITDA shall be determined on a Pro Forma Basis in
accordance with the definition of “Pro Forma Basis” contained herein.


 


“Tranche” shall mean the
applicable facility and commitments utilized in making Loans hereunder, with
there being three separate Tranches, i.e., Revolving Loans, Swingline
Loans and Term Loans.


 


7

















 


(c)                          Section 1.01
of the Credit Agreement is hereby amended by adding the following definitions:


 


“Amendment No. 2”
shall mean Amendment No.  2 to this Agreement dated as of July 11,
2008.


 


“Amendment No. 2
Effective Date” shall mean the date on which Amendment No. 2 becomes
effective pursuant to the last sentence of Section 4 of Amendment No. 2.


 


“Applicable Term Loan Margin”
shall mean a percentage per  annum equal to (i) in the case
of Term Loans maintained as Base Rate Loans, 2.75% and (ii) in the case of
Term Loans maintained as Eurodollar Loans, 3.75%.


 


“Convertible Note Retirement”
shall mean any transaction in which Convertible Notes are repurchased or
redeemed or otherwise retired by the Borrower, including (i) any
repurchase of any or all Convertible Notes by the Borrower in one or more
transactions pursuant to a tender offer or otherwise for a purchase price not,
in any such transaction, exceeding 100% of the principal amount outstanding on
the repurchased Convertible Notes plus accrued but unpaid interest thereon to
the date of repurchase, (ii) any redemption of Convertible Notes by the
Borrower, in whole or in part, permitted by the Convertible Note Indenture and (iii) any
repurchase of Convertible Notes by the Borrower required to be made at the
option of the holder of such Convertible Notes pursuant to the Convertible Note
Indenture.


 


“Convertible Note Indenture”
shall mean the Indenture dated as of April 21, 2004 between the Borrower
and Wells Fargo Bank, National Association, as trustee, in effect on the
Amendment No. 2 Effective Date.


 


                                                “Convertible
Notes” shall mean the Borrower’s $150,000,000 in aggregate principal amount
of 1.25% Contingent Convertible Senior Notes due 2024.


 


“Credit Party Excess Cash
Amount” shall mean, for any Excess Cash Payment Period, Excess Cash Flow
for such Excess Cash Payment Period determined as if the group comprising the
Borrower and its Subsidiaries consisted solely of the Borrower and the
Subsidiaries of the Borrower that are Credit Parties multiplied by (i) 75%,
for any Excess Cash Payment Period for which the Total Leverage Ratio as of the
last day of such Excess Cash Payment Period was greater than 3.0:1, (ii) 62.5%,
for any Excess Cash Payment Period for which the Total Leverage Ratio as of the
last day of such Excess Cash Payment Period was greater than 2.5:1 but not
greater than 3.0:1, (iii) 50%, for any Excess Cash Payment Period for
which the Total Leverage Ratio as of the last day of such Excess Cash Payment
Period was greater than 2.0:1 but not greater than 2.5:1, (iv) 37.5%, for
any Excess Cash Payment Period for which the Total Leverage Ratio as of the
last day of such Excess Cash Payment Period was greater than 1.5:1 but not
greater than 2.0:1 and (v) 25%, for any Excess Cash Payment Period for
which the Total Leverage Ratio as of the last day of such Excess Cash Payment
Period was not greater than 1.5:1; provided that the Credit Party Excess Cash
Amount for such Excess Cash Payment Period shall be zero if such Excess Cash
Flow is a negative number.


 


8

















 


“Dedicated Cash” shall
mean, on any date of determination, the amount of all deposits and securities
entitlements held in the Special Account and all such deposits and securities
entitlements, and proceeds thereof, that have then been disbursed or
transferred from the Special Account (but not yet applied) to pay the
redemption or repurchase price in any Convertible Notes Retirement.


 


“Defaulting Term Lender”
shall mean any Term Lender with respect to which a Term Lender Default is in
effect.


 


“Excess Cash Payment Amount”
shall mean, for any Excess Cash Payment Period, an amount equal to (i) the
lesser of (a) the Group Excess Cash Amount for such Excess Cash Payment
Period and (b) the Credit Party Excess Cash Amount for such Excess Cash
Payment Period minus (ii) the sum of (x) all voluntary
prepayments of Term Loans, scheduled mandatory prepayments of Term Loans
pursuant to Section 5.02A(a) and voluntary permanent reductions of
the Total Revolving Loan Commitment made in the year ending on the day
immediately preceding the Excess Cash Payment Date for such Excess Cash Payment
Period (other than repayments made with the proceeds of sales of fixed assets,
equity issuances, insurance or Indebtedness other than Loans) and (y) $250,000;
provided that the Excess Cash Payment Amount for such Excess Cash
Payment Period shall be zero if such difference is a negative number.


 


“Excess
Cash Payment Date” shall mean the date occurring 90 days after the last day
of each fiscal year of the Borrower, commencing with the fiscal year of the
Borrower ending October 31, 2009.


 


“Excess Cash Payment Period”
shall mean, with respect to the repayment required on each Excess Cash Payment
Date or the calculation of the Available Amount, the immediately preceding
fiscal year of the Borrower.


 


“Group Excess Cash Amount”
shall mean, for any Excess Cash Payment Period, Excess Cash Flow for such
Excess Cash Payment Period multiplied by (i) 50%, for any Excess Cash
Payment Period for which the Total Leverage Ratio as of the last day of such
Excess Cash Payment Period was greater than 3.0:1, (ii) 41.7%, for any
Excess Cash Payment Period for which the Total Leverage Ratio as of the last
day of such Excess Cash Payment Period was greater than 2.5:1 but not greater
than 3.0:1, (iii) 33.3%, for any Excess Cash Payment Period for which the
Total Leverage Ratio as of the last day of such Excess Cash Payment Period was
greater than 2.0:1 but not greater than 2.5:1, (iv) 25%, for any Excess
Cash Payment Period for which the Total Leverage Ratio as of the last day of
such Excess Cash Payment Period was greater than 1.5:1 but not greater than
2.0:1 and (v) 16.7%, for any Excess Cash Payment Period for which the
Total Leverage Ratio as of the last day of such Excess Cash Payment Period was
not greater than 1.5:1; provided that the Group Excess Cash Amount for such
Excess Cash Payment Period shall be zero if such Excess Cash Flow is a negative
number.


 


“Incremental Aggregate
Amount” shall mean $100,000,000 minus the aggregate principal amount of the
Term Loans on the Amendment No. 2 Effective Date.


 


9

















 


“Incremental Term Loan
Agreement” shall mean each Incremental Term Loan Agreement in the form of Exhibit N
(appropriately completed) executed and delivered in accordance with Section 2.13A.


 


“Incremental Term Loan
Request Requirements” shall mean, with respect to any request for an
Incremental Term Loan made pursuant to Section 2.13A, the satisfaction of
each of the following conditions on the date of such request:


 


(1)                                  no
Default or Event of Default then exists or would result therefrom (for purposes
of such determination, assuming the relevant Incremental Term Loans then
requested had been incurred, and the proposed Permitted Acquisition (if any)
and/or debt repayment or retirement to be financed with the proceeds of such
Incremental Term Loans had been consummated, on such date), and all of the
representations and warranties contained herein and in the other Credit Documents
are true and correct in all material respects on such date (unless stated to
relate to a specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date);
and


 


(2)                                  the
Credit Parties shall be in compliance with the covenants contained in Section 10.08
and 10.09 (determined as if a Test Period is then in existence), calculating
the covenants therein based on the four fiscal quarter period ended with the
last fiscal quarter for which financial statements have been delivered pursuant
to Section 9.01(a) on or prior to the date of the request for Incremental
Term Loans, on a Pro Forma Basis, as if the relevant Incremental Term Loans had
been incurred, and the proposed Permitted Acquisition (if any) and/or debt
repayment or retirement to be financed with the proceeds of such Incremental
Term Loans (as well as other Permitted Acquisitions theretofore consummated after
the first day of such four fiscal quarter period) had occurred, on the first
day of such four fiscal quarter period.


 


“Incremental Term Loan
Requirements” shall mean, with respect to any provision of an Incremental
Term Loan on an Incremental Term Loan Date, the satisfaction of each of the
following conditions on or prior to such Incremental Term Loan Date:


 


(1)                                  no
Default or Event of Default then exists or would result therefrom (for purposes
of such determination, assuming the relevant Incremental Term Loans then
provided had been incurred, and the proposed Permitted Acquisition (if any)
and/or debt repayment or retirement to be financed with the proceeds of such
Incremental Term Loans had been consummated, on such Incremental Term Loan
Date), and all of the representations and warranties contained herein and in
the other Credit Documents are true and correct in all material respects on
such date (unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material respects
as of such earlier date);


 


(2)                                  the
Borrower and its Subsidiaries shall have delivered such amendments,
modifications and/or supplements to the Security Documents as are


 


10

















 


necessary, or
in the reasonable opinion of the Administrative Agent desirable, to insure that
the additional obligations are secured by, and entitled to the benefits of, the
Security Documents;


 


(3)                                  calculations
are made by the Borrower demonstrating compliance with the covenants contained
in Sections 10.08 and 10.09 (determined as if a Test Period is then in existence),
calculating the covenants therein based on the four fiscal quarter period ended
with the last fiscal quarter for which financial statements have been delivered
pursuant to Section 9.01(a) on or prior to the date of the request
for Incremental Term Loans on or prior to such Incremental Term Loan Date, on a
Pro Forma Basis, as if the relevant Incremental Term Loans had been incurred,
and the proposed Permitted Acquisition (if any) and/or debt repayment or
retirement to be financed with the proceeds of such Incremental Term Loans (as
well as other Permitted Acquisitions theretofore consummated after the first
day of such four fiscal quarter period) had occurred, on the first day of such
four fiscal quarter period;


 


(4)                                  the
delivery by the Borrower to the Administrative Agent of an officer’s
certificate executed by the chief financial officer of the Borrower and certifying
as to compliance with preceding clauses (2) and (3) and containing
the calculations (in reasonable detail) required by preceding clause (3);


 


(5)                                  the
delivery by the Borrower to the Administrative Agent of an acknowledgement in
form and substance reasonably satisfactory to the Administrative Agent and
executed by each Guarantor, acknowledging that such Incremental Term Loans
shall constitute (and be included in the definition of) “Obligations”;


 


(6)                                  the
delivery by the Borrower to the Administrative Agent of an opinion or opinions,
in form and substance reasonably satisfactory to the Administrative Agent, from
counsel to the Credit Parties reasonably satisfactory to the Administrative
Agent and dated such date, covering such of the matters set forth in the
opinions of counsel delivered to the Administrative Agent on the Initial
Borrowing Date pursuant to Section 6.02 as may be reasonably requested by
the Administrative Agent, and such other matters incident to the transactions
contemplated thereby as the Administrative Agent may reasonably request;


 


(7)                                  the
delivery by each Credit Party to the Administrative Agent of such other
officers’ certificates, board of director (or equivalent governing body)
resolutions and evidence of good standing (to the extent available under applicable
law) as the Administrative Agent shall reasonably request; and


 


(8)                                  the
completion by each Credit Party of such other actions as the Administrative
Agent may reasonably request in connection with such Incremental Term Loans.


 


“Joinder Agreement” shall mean with
respect to any Term Lender on the Amendment No. 2 Effective Date that is
not an Initial Term Lender, a joinder agreement to the


 


11

















 


Credit
Agreement in a form agreed upon by the Administrative Agent and the Borrower,
to be executed and delivered by such Term Lender on the Amendment No. 2
Effective Date as provided in Section 6.


 


“Net Cash Proceeds”
shall mean, for any event requiring a repayment of the Term Loans pursuant to Section 5.02A,
the gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such event, net of Taxes paid or payable as a result
thereof and reasonable transaction costs (including, as applicable, any
underwriting, brokerage or other customary commissions and reasonable legal,
accounting, advisory and other fees and expenses associated therewith) received
from any such event.


 


“Recovery Event” shall
mean the receipt by the Borrower or any of its Subsidiaries of any cash
casualty or property insurance proceeds (not including business interruption
insurance) or condemnation awards payable by reason of theft, loss, physical destruction,
damage, taking or any other similar event with respect to any property or
assets of the Borrower or any of its Subsidiaries.


 


“Special Account”  shall mean a deposit or securities account
owned by and in the name of the Borrower that is subject to an account control
agreement between the depositary bank or securities intermediary, the
Collateral Agent and the Borrower providing that (i) all deposits or
securities entitlements in such account are the property of the Borrower, (ii) the
Borrower grants the Administrative Agent, as Collateral Agent, a security
interest in such account and the deposits, funds, securities, property or
securities entitlements therein as security for the payment of the Obligations,
(iii) the Borrower will grant control (in the case of a deposit account,
as such term is defined in section 9-104 of the UCC or in the case of
any securities account, as such term is defined in section 8-106 of the UCC) of
the account to the Collateral Agent and the Collateral Agent’s security interest
in such account will be perfected, (iv) the Collateral Agent will become
entitled to enforce such security interest, by taking or exercising control
over such account or the deposits or securities entitlements therein, only if
an order for relief has been granted in a case commenced under the United
States Bankruptcy Code in which the Borrower is the debtor, (iv) the
Borrower will be permitted to direct investment of amounts in such account in
Cash Equivalents, and (v) the Borrower will have the sole and unrestricted
right to withdraw or transfer, and to direct the depositary bank or securities
intermediary to deliver, all deposits or securities entitlements in such
account, together with the proceeds thereof, at all times and in all
circumstances, unless an order for relief has been granted against the Borrower
in any such case under the United States Bankruptcy Code, and the Collateral
Agent’s security interest in such deposits or securities entitlements and proceeds
thereof will be released and terminated upon such withdrawal, transfer or delivery.


 


“Specified Asset Sale”
shall mean an Asset Sale described in and permitted by Section 10.02(iii) or
10.02(xi).


 


“Tender Offer” shall
mean an offer by the Borrower to repurchase Convertible Notes for a purchase
price not exceeding 100% of the principal amount outstanding thereon plus
accrued but unpaid interest to the date of repurchase.


 


12

















 


“Term Lender” shall mean
each financial institution listed on Schedule I to Amendment No. 2, each
financial institution that signs a Joinder Agreement to provide a Term Loan and
any Lender that acquires a Term Loan by assignment from a Term Lender as
provided in Section 13.04(b).


 


“Term Lender Default”
shall mean (i) the wrongful refusal (which has not been retracted) or the
failure of a Term Lender to make available its portion of any Borrowing of a
Term Loan or (ii) a Term Lender having notified in writing the Borrower
and/or the Administrative Agent that such Term Lender does not intend to comply
with its obligations under Section 2.01A.


 


“Term Loan Maturity Date”
shall mean November 30, 2011.


 


	
  “Incremental Term Lender”

  	
   

  	
  Section 2.13A(b)

  
	
  “Incremental Term Loans”

  	
   

  	
  Section 2.13A(a)

  
	
  “Incremental Term Loan Commitment Date”

  	
   

  	
  Section 2.13A(b)

  
	
  “Replaced Term Lender”

  	
   

  	
  Section 2.12A

  
	
  “Replacement Term Lender”

  	
   

  	
  Section 2.12A

  
	
  “Scheduled Term Loan Repayment”

  	
   

  	
  Section 5.02A(a)

  
	
  “Scheduled Term Loan Repayment Date”

  	
   

  	
  Section 5.02A(a)

  
	
  “Term Loans”

  	
   

  	
  Section 2.01A

  
	
  “Term Note”

  	
   

  	
  Section 2.04A(a)

  



 


13

















 


(d)                         Section 2.13(a) of
the Credit Agreement is hereby amended (i) to replace “$25,000,000” with “$10,000,000”
and (ii) to replace “$100,000,000” with “the Incremental Aggregate Amount minus
the amount of any Incremental Term Loans made pursuant to Section 2.13A(a).”


 


14


















 


(e)                          New Section 2A
shall be added to the Credit Agreement as follows:


 


SECTION 2A.                                         Amount and
Terms of Term Loans.


 


2.01A.              The Term Loans.  Subject to and upon the terms and conditions
set forth herein, each Term Lender agrees to make a term loan to the Borrower
(together, the “Term Loans”), which Term Loan (i) shall be incurred
pursuant to a single drawing on or within 10 Business Days after the Amendment No. 2
Effective Date, (ii) shall be denominated in Dollars, (iii) except as
hereinafter provided, shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that, except as otherwise specifically provided in Section 2.09A(b), all
Term Loans comprising the same Borrowing shall be of the same Type and (iv) shall
be made by each such Term Lender in accordance with its pro rata commitment set
forth on Schedule I to Amendment No. 2 or in its Joinder Agreement it
signs to provide a Term Loan.  Once
repaid, the Term Loans may not be reborrowed. 
At no time shall there be outstanding more than three Borrowings of
Eurodollar Loans that are Term Loans.


 


2.02A.              Notice of
Borrowing.


 


(a)                                  The
Borrower shall give the Administrative Agent written Notice of Borrowing (or
telephonic notice promptly confirmed in writing) at the Notice Office at least
two (2) Business Days prior to the Borrowing of the Term Loans.  Such Notice of Borrowing shall be irrevocable
and shall be in writing, or by telephone promptly confirmed in writing, in the
form of Exhibit A-1, appropriately completed to specify (i) the
date of the Borrowing (which shall be a Business Day after the Amendment No. 2
Effective Date but no later than October 31, 2008), (ii) the amount
of the Borrowing, and (iii) whether the Term Loans are to be initially
maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto.  The Administrative Agent shall promptly give
each Term Lender written notice (or telephonic notice promptly confirmed in
writing) of the Borrowing of the Term Loans and of the other matters covered by
the Notice of Borrowing.


 


(b)                                 Without
in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice of such Borrowing believed by the Administrative Agent
in good faith to be from an Authorized Officer of the Borrower prior to receipt
of written confirmation.  In each such
case the Borrower hereby waives the right to dispute the Administrative Agent’s
record of the terms of any such telephonic notice, absent manifest error.


 


2.03A.              Disbursement of
Funds.  No later than 1:00 P.M.
(New York time) on the applicable Borrowing Date, each Term Lender will
make available its pro  rata portion of the Term Loans.  All such amounts will be made available in
Dollars and in immediately available funds at the Payment Office.  Unless the Administrative Agent shall have
been notified by any Term Lender prior to the Borrowing Date that such Term
Lender does not intend to make available to the Administrative Agent its
portion of the Term Loans, the Administrative Agent may assume that such Term
Lender has made such amount available 


 


15

















 


to the
Administrative Agent on the applicable Borrowing Date, and the Administrative
Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact
made available to the Administrative Agent by such Term Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Term Lender.  If such Term Lender does
not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent.  The Administrative Agent also
shall be entitled to recover on demand from such Term Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower until the date such corresponding amount
is recovered by the Administrative Agent, at a rate per  annum
equal to (i) if recovered from such Term Lender, the overnight Federal
Funds Rate for the first three days and at the interest rate otherwise
applicable to the Term Loans for each day thereafter and (ii) if recovered
from the Borrower, the rate of interest applicable to the Term Loans, as
determined pursuant to Section 2.07A. 
Nothing in this Section 2.03A shall be deemed to relieve any Term
Lender from its obligation to make Term Loans hereunder or to prejudice any
rights which the Borrower may have against any Term Lender as a result of any
failure by such Term Lender to make Term Loans hereunder.


 


2.04A.              Notes.


 


(a)                                  The
Borrower’s obligation to pay the principal of, and interest on, the Term Loans
made by each Term Lender shall be evidenced in the Register maintained by the
Administrative Agent pursuant to Section 13.15 and shall, if requested by
such Term Lender, also be evidenced by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-3,
with blanks appropriately completed in conformity herewith (a “Term Note”).


 


(b)                                 Each
Term Lender shall note on its internal records the amount of the Term Loan made
by it and each payment in respect thereof and prior to any transfer of its Term
Notes will endorse on the reverse side thereof the outstanding principal amount
of Term Loans evidenced thereby.  Failure
to make any such notation or any error in such notation shall not affect the
Borrower’s obligations in respect of such Term Loans or any related Obligations.


 


(c)                                  Notwithstanding
anything to the contrary contained above in this Section 2.04A or elsewhere
in this Agreement, Term Notes shall only be delivered to Term Lenders that
specifically request the delivery of a Term Note.  No failure of any Term Lender to request or
obtain a Term Note evidencing its Term Loan to the Borrower shall affect or in
any manner impair the obligations of the Borrower to pay the Term Loan (and all
related Obligations) incurred by the Borrower which would otherwise be
evidenced thereby in accordance with the requirements of this Agreement, and
shall not in any way affect the security or guarantees therefor provided
pursuant to the various Credit Documents.


 


16

















 


Any Term
Lender which does not have a Term Note evidencing its outstanding Term Loan
shall in no event be required to make the notations otherwise described in the
preceding clause (b).  At any time when
any Term Lender requests the delivery of a Term Note to evidence its Term Loan,
the Borrower shall promptly execute and deliver to such Term Lender the requested
Term Note in the appropriate amount or amounts to evidence such Term Loan.


 


2.05A.              Conversions.  The Borrower shall have the option to
convert, on any Business Day, all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Term Loans made
pursuant to one or more Borrowings of one or more Types of Term Loans into a
Borrowing of another Type, provided that (i) except as otherwise
provided in Section 2.09A(b), Eurodollar Loans may be converted into Base
Rate Loans only on the last day of an Interest Period applicable to the Term
Loans being converted and no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Term Loans made
pursuant to a single Borrowing to less than the Minimum Borrowing Amount
applicable thereto, (ii)  Base Rate Loans may only be converted into
Eurodollar Loans if no Default or Event of Default is in existence on the date
of the conversion and so long as the Administrative Agent has or the Required
Lenders have not determined in its or their sole discretion not to permit such
continuation, (iii) no conversion pursuant to this Section 2.05A(d) shall
result in a greater number of Borrowings of Eurodollar Term Loans than is
permitted under Section 2.01A.  Each
such conversion shall be effected by the Borrower by giving the Administrative
Agent at the Notice Office prior to 12:00 Noon (New York time) at least (x) in
the case of conversions of Base Rate Term Loans into Eurodollar Term Loans, a
Notice of Conversion/Continuation three Business Days’ prior notice and (y) in
the case of conversions of Eurodollar Term Loans into Base Rate Term Loans, a
Notice of Conversion/Continuation on one Business Day’s prior notice,
appropriately completed to specify the Term Loans to be so converted, the
Borrowing or Borrowings pursuant to which such Term Loans were incurred and, if
to be converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto.  The Administrative
Agent shall give each Term Lender prompt notice of any such proposed conversion
affecting any of its Term Loans.


 


2.06A.              Term Loan
Maturity Date.  The Term Loans will
mature on the Term Loan Maturity Date.


 


2.07A.              Interest.


 


(a)                                  The
Borrower agrees to pay interest in respect of the unpaid principal amount of
each Base Rate Loan that is a Term Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 2.05A or 2.08A, at a rate per  annum
which shall be equal to the sum of the relevant Applicable Term Loan Margin plus
the Base Rate, each as in effect from time to time.


 


(b)                                 The
Borrower agrees to pay interest in respect of the unpaid principal amount of
each Eurodollar Loan that is a Term Loan from the date of Borrowing thereof


 


17

















 


until the
earlier of (i) the maturity thereof (whether by acceleration or otherwise)
and (ii) the conversion of such Eurodollar Term Loan to a Base Rate Loan
pursuant to Section 2.05A, 2.08A or 2.09A, as applicable, at a rate per
annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the relevant Applicable Margin plus the Eurodollar
Rate for such Interest Period.  If all or
a portion of (i) the principal amount of the Term Loan or (ii) any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per  annum that is (x) in the case of overdue
principal, the rate described in Section 2.07A(a) plus 2% or (y) in
the case of any overdue interest, to the extent permitted by applicable law,
the rate described in Section 2.07A(a) plus 2% from and including the
date of such non-payment to but excluding the date on which such amount is paid
in full (after as well as before judgment).


 


(c)                                  Accrued
(and theretofore unpaid) interest shall be payable (i) in respect of each
Base Rate Loan that is a Term Loan, (x) quarterly in arrears on each
Quarterly Payment Date, (y) on the date of any repayment or prepayment in
full of all outstanding Base Rate Loans that are Term Loans, and (z) at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand,
and (ii) in respect of each Eurodollar Loan that is a Term Loan, (x) on
the last day of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period, and (y) on the date
of any repayment or prepayment (on the amount repaid or prepaid) in full of all
outstanding Eurodollar Loans that are Term Loans and (z) at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.


 


(d)                                 Upon
each Interest Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for each Interest Period applicable to the respective Eurodollar
Loans that are Term Loans and the Administrative Agent, upon determining the interest
rate for the Borrowing, shall promptly notify the Borrower and the Term Lenders
thereof.  Each such determination shall,
absent clearly demonstrable error, be final and conclusive and binding on all
parties hereto.


 


2.08A.  Interest Periods.  At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any Eurodollar  Loan
that is a Term Loan (in the case of the initial Interest Period applicable
thereto) or prior to 12:00 Noon (New York time) on the third Business Day prior
to the expiration of an Interest Period applicable to such Eurodollar Loan (in
the case of any subsequent Interest Period), the Borrower shall have the right to
elect the Interest Period applicable to such Eurodollar Loan, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six-month
period.


 


Notwithstanding anything to the
contrary contained above:


 


(a)                                  the
initial Interest Period for the Eurodollar Loans that are Term Loans shall
commence on the initial Borrowing Date of such Term Loans (including the date
of any conversion thereto from a Base Rate Loan) and each Interest


 


18

















 


Period
occurring thereafter in respect of any Borrowing shall commence on the day on
which the next preceding Interest Period applicable thereto expires;


 


(b)                                 if
any Interest Period begins on the last Business Day of a calendar month or
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of the calendar month at the end of such Interest
Period;


 


(c)                                  if
any Interest Period for a Eurodollar Loan would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided that if any Interest Period for a Eurodollar Loan
would otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest
Period shall expire on the preceding Business Day;


 


(d)                                 no
Interest Period may be selected at any time when a Default or an Event of
Default is then in existence and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such selection;
and


 


(e)                                  the
last Interest Period applicable to the Term Loans shall end on the Term Loan
Maturity Date.


 


If by 12:00 Noon (New York time) on the third
Business Day prior to the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans that are Term Loans, the Borrower has failed to
elect, or is not permitted to elect, a new Interest Period to be applicable to
such Eurodollar Loans as provided above, the Borrower shall be deemed to have
elected to convert such Eurodollar Loans into Base Rate Loans effective as of
the expiration date of such current Interest Period.


 


2.09A.              Increased Costs,
Illegality, etc.


 


(a)                                  In
the event that any Term Lender shall have determined (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto but, with respect to clause (i) below, may be made only by
the Administrative Agent):


 


(i)                                     on
any Interest Determination Date that, by reason of any changes arising after
the Amendment No. 2 Effective Date affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate;
or


 


(ii)                                  at
any time, that such Term Lender shall incur increased costs or reductions in
the amounts received or receivable hereunder with respect to any Eurodollar
Term Loan because of (x) any change since the Amendment No. 2 Effective
Date in any applicable law or governmental rule, regulation, order, guideline
or request (whether or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law or governmental
rule, regulation, order, guideline


 


19

















 


or request, such as, but not
limited to:  (A) a change in the
basis of taxation of payment to any Term Lender of the principal of or interest
on the Term Loans or the Term Notes or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to, the
net income or net profits of such Term Lender pursuant to the laws of the
jurisdiction in which it is organized or in which its principal office or applicable
lending office is located or any subdivision thereof or therein) or (B) a
change in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances arising since the Amendment
No. 2 Effective Date affecting such Term Lender, the interbank Eurodollar
market or the position of such Term Lender in such market; or


 


(iii)                               at
any time, that the making or continuance of any Eurodollar Loan that is a Term
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Term Lender in
good faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Amendment No. 2 Effective Date which materially and adversely affects the
interbank Eurodollar market;


 


then, and in any such event, such Term Lender (or the Administrative
Agent, in the case of clause (i) above) shall promptly give notice (by
telephone promptly confirmed in writing) to the Borrower and, except in the
case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Term Lenders). 
Thereafter (x) in the case of clause (i) above, Eurodollar
Loans that are Term Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Term Lenders that the circumstances
giving rise to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower
with respect to Eurodollar Loans that are Term Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower agrees
to pay to such Term Lender, upon such Term Lender’s written request therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Term Lender in its sole
discretion shall determine) as shall be required to compensate such Term Lender
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Term
Lender, showing in reasonable detail the basis for the calculation thereof,
submitted to the Borrower by such Term Lender shall, absent manifest error, be
final and conclusive and binding on all the parties hereto) and (z) in the
case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 2.09A(b) as promptly as possible and, in any
event, within the time period required by law.


 


20

















 


(b)                                 At
any time that any Eurodollar Term Loan is affected by the circumstances
described in Section 2.09A(a)(ii), the Borrower may, and in the case of a
Eurodollar Loan that is a Term Loan affected by the circumstances described in Section 2.09A(a)(iii),
the Borrower shall, either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Term Lender or the
Administrative Agent pursuant to Section 2.09A(a)(ii) or (iii) or
(y) if the affected Eurodollar Loan that is a Term Loan is then
outstanding, upon at least three Business Days’ written notice to the
Administrative Agent, require the affected Term Lender to convert such Eurodollar
Loan into a Base Rate Loan, provided that, if more than one Term Lender
is affected at any time, then all affected Term Lenders must be treated the
same pursuant to this Section 2.09A(b).


 


(c)                                  If
any Term Lender determines that after the Amendment No. 2 Effective Date
the introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by the National Association of Insurance Commissioners
or any governmental authority, central bank or comparable agency, will have the
effect of increasing the amount of capital required or expected to be
maintained by such Term Lender or any corporation controlling such Term Lender
based on the existence of such Term Lender’s obligations hereunder, then the
Borrower agrees to pay to such Term Lender, upon its written demand therefor,
such additional amounts as shall be required to compensate such Term Lender or
such other corporation for the increased cost to such Term Lender or such other
corporation or the reduction in the rate of return to such Term Lender or such
other corporation as a result of such increase of capital.  In determining such additional amounts, each
Term Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Term Lender’s
determination of compensation owing under this Section 2.09A(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto.  Each Term Lender, upon
determining that any additional amounts will be payable pursuant to this Section 2.09A(c),
will give prompt written notice thereof to the Borrower, which notice shall
show in reasonable detail the basis for calculation of such additional amounts.


 


2.10A.              Compensation.  The Borrower agrees to compensate each Term
Lender, upon its written request (which request shall set forth in reasonable
detail the basis for requesting such compensation), for all losses, expenses
and liabilities (including any loss, expense or liability incurred by reason of
the liquidation or reemployment of deposits or other funds required by such
Term Lender to fund its Eurodollar Loans that are Term Loans but excluding loss
of anticipated profits) which such Term Lender may sustain:  (i) if for any reason (other than a
default by such Term Lender or the Administrative Agent) the Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in the Notice of Borrowing or Notice of Conversion/ Continuation; (ii) if
any prepayment or repayment (including any prepayment or repayment made
pursuant to Section 5.01A or 5.02A or as a result of an acceleration of
the Term Loan pursuant to Section 11) or conversion of any of its
Eurodollar Loans occurs on a date


 


21

















 


which is not
the last day of an Interest Period with respect thereto; (iii) if any
prepayment of its Eurodollar Loans that are Term Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay Eurodollar
Loans that are Term Loans when required by the terms of this Agreement or any
Term Note held by such Term Lender or (y) any election made pursuant to Section 2.09A(b).


 


2.11A.              Change of Lending
Office.  Each Term Lender agrees that
on the occurrence of any event giving rise to the operation of Section 2.09A
or Section 5.04A with respect to such Term Lender, it will, if requested
by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Term Lender) to designate another lending office for any
Term Loan affected by such event, provided that such designation is made
on such terms that such Term Lender and its lending office suffer no economic,
legal or regulatory disadvantage, with the object of avoiding the consequence
of the event giving rise to the operation of such Section.  Nothing in this Section 2.11A shall
affect or postpone any of the obligations of the Borrower or the right of any
Term Lender provided in Sections 2.08A and 5.04A.


 


2.12A.              Replacement of
Term Lenders.  (x) If any Term
Lender becomes a Defaulting Term Lender, (y) upon the occurrence of any
event giving rise to the operation of Section 2.09A(a)(ii) or (iii), Section 2.09A(c),
or Section 5.04A with respect to any Term Lender which results in such
Term Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Term Lenders or (z) in the case of a refusal
by a Term Lender to consent to a proposed change, waiver, discharge or termination
with respect to this Agreement which has been approved by the Required Lenders
as (and to the extent) provided in Section 13.04(b), the Borrower shall
have the right, in accordance with Section 13.04(b), if no Default or
Event of Default then exists or would exist after giving effect to such
replacement, to replace such Term Lender (the “Replaced Term Lenders”)
with one or more other Eligible Transferees, none of whom shall constitute a
Defaulting Term Lender at the time of such replacement (collectively, the “Replacement
Term Lenders”) and each of which shall be reasonably acceptable to the Administrative
Agent; provided that:  (a) at
the time of any replacement pursuant to this Section 2.12A, the
Replacement Term Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Term Lender
and/or the Replaced Term Lender (as may be agreed to at such time by and among
the Borrower, the Replacement Term Lender and the Replaced Term Lender))
pursuant to which the Replacement Term Lender shall acquire all of the relevant
Term Loans and (b) all obligations of the Borrower then owing to the
Replaced Term Lender shall be paid in full to such Replaced Term Lender
concurrently with such replacement.


 


2.13A.             Incremental
Commitments.


 


(a)                                  So
long as the Incremental Term Loan Request Requirements are satisfied at the
time of the delivery of the request referred to below, the Borrower shall have
the right, in consultation and coordination with the Administrative Agent as to
all of the matters


 


22

















 


set forth
below in this Section 2.13A, but without requiring the consent of any of
the Lenders, to request at any time and from time to time after the Amendment No. 2
Effective Date and prior to the date that is three months prior to the Term
Loan Maturity Date, that one or more Lenders (and/or one or more other Persons
that are Eligible Transferees and that will become Incremental Term Lenders as
provided below) provide incremental term loans having the terms provided in the
next sentence (the “Incremental Term Loans”), it being understood and
agreed, however, that (i) no Lender shall be obligated to provide an
Incremental Term Loan as a result of any such request by the Borrower, (ii) any
Lender (including any Eligible Transferee that will become an Incremental Term
Lender) may so provide an Incremental Term Loan without the consent of any
other Lender, (iii) each provision of Incremental Term Loans on a given
date pursuant to this Section 2.13A shall be in a minimum aggregate amount
(for all Lenders (including any Eligible Transferee that will become an
Incremental Term Lender)) of at least $10,000,000 and in integral multiples of
$5,000,000 in excess thereof, and (iv) the aggregate amount of all
Incremental Term Loans provided pursuant to this Section 2.13A shall not
exceed the Incremental Aggregate Amount minus the amount of any
Incremental Commitments made pursuant to Section 2.13(a).  Incremental Term Loans shall be subject to
the following:


 


                                                        (i)                             terms
and provisions of Incremental Term Loans shall be, except as otherwise set
forth herein or in the Incremental Term Loan Amendment, identical to the Term
Loans (it being understood that Incremental Term Loans may be a part of the
Term Loans);


 


                                                     (ii)                             the
weighted average life to maturity of any Incremental Term Loans shall be no
shorter than the weighted average life of maturity of the existing Term Loans;


 


                                                  (iii)                             the
maturity date of Incremental Term Loans shall not be earlier than the Term Loan
Maturity Date;


 


                                                 (iv)                             the
applicable margins for the Incremental Term Loans shall be determined by the
Borrower and the Lenders of the Incremental Term Loans; provided that in the event that the
applicable margins for any Incremental Term Loans are greater than the
Applicable Term Loan Margins, then the Applicable Term Loan Margins shall be
increased to the extent necessary so that the applicable margins for the
Incremental Term Loans are equal to the Applicable Term Loan Margins; provided,
further, that in determining the Applicable Term Loan Margins and
the applicable margins applicable to the Incremental Term Loans, (x) original
issue discount (“OID”) or
upfront fees (which shall be deemed to constitute like amounts of OID) payable
by the Borrower to the Lenders of the Term Loans or the Incremental Term Loans
in the primary syndication thereof shall be included (with OID being equated to
interest based on an assumed four-year life to maturity) and (y) customary
arrangement or commitment fees payable to the Arranger (or its affiliates) in
connection with the Term Loans or to one or more 


 


23

















 


arrangers (or their affiliates)
of the Incremental Term Loans shall be excluded; and


 


                                                    (v)                             to
the extent that the terms and provisions of Incremental Term Loans are not
identical to the Loans (except to the extent permitted by clause (iii) or (iv) above)
they shall be reasonably satisfactory to the Administrative Agent.


 


(b)                                 At
the time of the provision of Incremental Term Loans pursuant to this Section 2.13A,
the Borrower, the Administrative Agent and each such Lender or other Eligible
Transferee that agrees to provide an Incremental Term Loan (each, an “Incremental
Term Lender”) shall execute and deliver to Administrative Agent an
Incremental Term Loan Agreement, with the effectiveness of such Incremental
Term Lender’s Incremental Term Loan to occur on the date set forth in such
Incremental Term Loan Agreement (the “Incremental Term Loan Commitment Date”),
which date in any event shall be no earlier than the date on which (w) all
fees required to be paid in connection therewith at the time of such
effectiveness shall have been paid (including any agreed upon up-front or
arrangement fees owing to the Administrative Agent (or any affiliate thereof)),
(x) all Incremental Term Loan Requirements shall have been satisfied, (y) all
other conditions set forth in this Section 2.13A shall have been
satisfied, and (z) all other conditions precedent that may be set forth in
such Incremental Term Loan Agreement shall have been satisfied.  The Administrative Agent shall promptly
notify each Lender as to the effectiveness of each Incremental Term Loan
Agreement, and at such time, to the extent requested by any Incremental Term
Lender, Term Notes shall be issued, at the expense of the Borrower, to such
Incremental Term Lender in conformity with the requirements of Section 2.04A(a).


 


(c)                                  The
Incremental Term Loans shall constitute Loans under, and shall be entitled to
all the benefits afforded by, this Agreement and the other Credit Documents,
and shall, without limiting the foregoing, benefit equally and ratably from the
Guarantees and security interests created by the Security Documents, except
that the Incremental Term Loans may be subordinated in right of payment or the
Liens securing the Incremental Term Loans may be subordinated, in each case, as
set forth in the Incremental Term Loan Amendment.  The Credit Parties shall take any actions
reasonably required by the Administrative Agent to ensure and/or demonstrate
that the Lien and security interests granted by the Security Documents continue
to be perfected under the UCC or otherwise security interests granted by the
Security Documents continue to be perfected under the UCC or otherwise after
giving effect to any such Incremental Term Loans.


 


24

















 


(f)                            New Section 5A
shall be added to the Credit Agreement as follows:


 


SECTION 5A.    Prepayments of Term Loans; Payments of
Term Loans; Taxes.


 


5.01A.              Voluntary
Prepayments.  The Borrower shall have
the right to prepay the Term Loans, without premium or penalty, in whole or in
part from time to time on the following terms and conditions:  (i) the Borrower shall give the
Administrative Agent prior to 12:00 Noon (New York time) at the Notice Office (x) at
least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Base Rate Loans that are Term
Loans and (y) at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans that are Term Loans, which notice (in each case) shall specify
the amount of such prepayment and the Types of Loans to be prepaid and, in the
case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to
which such Eurodollar Loans were made, and which notice the Administrative
Agent shall promptly transmit to each of the Term Lenders; (ii) each
partial prepayment of Term Loans pursuant to this Section 5.01A shall be
in an aggregate principal amount of at least $1.0 million (or such lesser
amount as is acceptable to the Administrative Agent), provided that if
any partial prepayment of Eurodollar Loans that are Term Loans made pursuant to
any Borrowing shall reduce the outstanding principal amount of Eurodollar Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto, then such Borrowing may not be continued as a
Borrowing of Eurodollar Loans (and same shall automatically be converted into a
Borrowing of Base Rate Loans) and any election of an Interest Period with
respect thereto given by the Borrower shall have no force or effect; and (iii) each
prepayment pursuant to this Section 5.01A in respect of any Term Loans
made pursuant to a Borrowing shall be applied pro  rata among such
Term Loans and to amortization payments as directed by the Borrower.


 


5.02A.              Mandatory Repayments.


 


(a)                                  In
addition to any other mandatory repayments pursuant to this Section 5.02A,
on each date set forth below (each, a “Scheduled Term Loan Repayment Date”),
the Borrower shall be required to repay that principal amount of Term Loans, to
the extent then outstanding, in the amount equal to the amount of the Term
Loans at the Amendment No. 2 Effective Date multiplied by the percentage
as is set forth opposite each such date below (each such repayment, as the same
may be reduced as provided in Section 5.01A or 5.02A(f), a “Scheduled
Term Loan Repayment”):


 


	
  Scheduled Term Loan Repayment
  Date

  	
   

  	
  Amount

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending January 31, 2009

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending April 30, 2009

  	
   

  	
  0.25

  	
  %

  



 


25

















 


	
  The last Business Day of the Borrower’s fiscal
  quarter ending July 31, 2009

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending October 31, 2009

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending January 31, 2010

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending April 30, 2010

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending July 31, 2010

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending October 31, 2010

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending January 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending April 30, 2011

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending July 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of the Borrower’s fiscal
  quarter ending October 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Term Loan Maturity Date

  	
   

  	
  Remainder

  



 


(b)                                 In addition to any
other mandatory repayments pursuant to this Section 5.02A, within one
Business Day of each date on or after the Amendment No. 2 Effective Date
upon which the Borrower or any of the Guarantors receives any cash proceeds
from any issuance or incurrence by the Borrower or any of the Guarantors of
Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04
as in effect on the Amendment No. 2 Effective Date), an amount equal to
100% of the Net Cash Proceeds of such incurrence of Indebtedness shall be
applied on such date as a mandatory repayment of Term Loans in accordance with
the requirements of Sections 5.02A(f) and (g).


 


(c)                                  In addition to any
other mandatory repayments pursuant to this Section 5.02A, within three
Business Days of each date on or after the Amendment No. 2 Effective Date
upon which the Borrower or any of its Subsidiaries receives any cash proceeds
from any Specified Asset Sale, an amount equal to 100% of the Net Cash Proceeds
therefrom in excess of $1,500,000 (together with amounts received pursuant to Section 5.02A(d))


 


26

















 


in the aggregate from the Amendment No. 2
Effective Date shall be applied on such date as a mandatory repayment of Term
Loans in accordance with the requirements of Sections 5.02A(f) and
(g).  So long as no Default or Event of
Default then exists and such Net Cash Proceeds do not exceed (i) $10,000,000
(together with amounts received pursuant to Section 5.02A(d)) in the
aggregate for Credit Parties and (ii) $25,000,000 (together with amounts
received pursuant to Section 5.02A(d)) in the aggregate for Subsidiaries
that are not Credit Parties, in each case from the Amendment No. 2
Effective Date, such Net Cash Proceeds shall not be required to be so applied
on such date to the extent that the Borrower has delivered a certificate to the
Administrative Agent on such date stating that such Net Cash Proceeds shall be
used to acquire any fixed asset used or useful in its business or to make a
Permitted Acquisition within 270 days following the date of the receipt of such
Net Cash Proceeds (which certificate shall set forth the estimates of the Net
Cash Proceeds to be so expended); provided that if all or any portion of
such Net Cash Proceeds not required to be so applied as provided above in this Section 5.02A(c) are
not so reinvested within such 270-day period (or such earlier date, if any, as
the Borrower or the relevant Subsidiary determines not to reinvest such Net
Cash Proceeds as set forth above), such remaining portion shall be applied on
the last day of such period (or such earlier date, as the case may be) as
provided above in this Section 5.02A(c) without regard to the
preceding provisions.


 


(d)                                 In addition to any
other mandatory repayments pursuant to this Section 5.02A, within three
Business Days of each date on or after the Amendment No. 2 Effective Date
upon which the Borrower or any of its Subsidiaries receives any cash proceeds
from any Recovery Event, an amount equal to 100% of the Net Cash Proceeds
therefrom in excess of $1,500,000 (together with amounts received pursuant to Section 5.02A(c))
in the aggregate from the Amendment No. 2 Effective Date shall be applied
on such date as a mandatory repayment of Term Loans in accordance with the
requirements of Sections 5.02A(f) and (g). 
So long as no Default or Event of Default then exists and such Net Cash
Proceeds do not exceed (i) $10,000,000 (together with amounts received
pursuant to Section 5.02A(d)) in the aggregate for Credit Parties and (ii) $25,000,000
(together with amounts received pursuant to Section 5.02A(c)) in the
aggregate for Subsidiaries that are not Credit Parties, in each case from the
Amendment No. 2 Effective Date, such Net Cash Proceeds shall not be
required to be so applied on such date to the extent that the Borrower has
delivered a certificate to the Administrative Agent on such date stating that
such Net Cash Proceeds shall be used to replace or restore any properties or
assets in respect of which such Net Cash Proceeds were paid or to acquire any
fixed asset used or useful in its business or to make a Permitted Acquisition
within 270 days following the date of the receipt of such Net Cash Proceeds
(which certificate shall set forth the estimates of the Net Cash Proceeds to be
so expended); provided that if all or any portion of such Net Cash
Proceeds not required to be so applied as provided above in this Section 5.02A(d) are
not so reinvested within such 270-day period (or such earlier date, if any, as
the Borrower or the relevant Subsidiary determines not to reinvest such Net
Cash Proceeds as set forth above), such remaining portion shall be applied on
the last day of such period (or such earlier date, as the case may be) as
provided above in this Section 5.02A(d) without regard to the
preceding provisions.


 


27

















 


(e)                                  In addition to any
other mandatory repayments pursuant to this Section 5.02A, on each Excess
Cash Payment Date, an amount equal to the Excess Cash Payment Amount for the
related Excess Cash Payment Period shall be applied as a mandatory repayment of
Term Loans in accordance with the requirements of Sections 5.02A(f) and
(g).


 


(f)                                    Each amount
required to be applied pursuant to Sections 5.02A(b), (c), (d) and (e) in
accordance with this Section 5.02A(f) shall be applied First, to the payment of all expenses due and payable to the
Arranger and to the Administrative Agent under Section 13.01; Second, to the payment of all expenses due and payable to
the Term Lenders under Section 13.01; Third, to the
payment of interest then due and payable on the Term Loans; and Fourth, to the payment of the principal amount of the Term
Loans pro  rata among such Term Loans and to amortization payments
as directed by the Borrower.


 


(g)                                 With respect to each
repayment of Term Loans required by this Section 5.02A, the Borrower may
designate the Types of Term Loans which are to be repaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which such
Eurodollar Loans were made, provided that:  (i) repayments of Eurodollar Loans that
are Term Loans pursuant to this Section 5.02A may only be made on the last
day of an Interest Period applicable thereto unless all Eurodollar Loans that
are Term Loans with Interest Periods ending on such date of required repayment
and all Base Rate Loans that are Term Loans have been paid in full; (ii) if
any repayment of Eurodollar Loans that are Term Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be automatically converted into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Term Loans made pursuant
to a Borrowing shall be applied pro  rata among such Term
Loans.  In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its sole
discretion.


 


5.03A.              Method and Place
of Payment.  Except as otherwise
specifically provided herein, all payments under this Agreement and under any
Term Note shall be made to the Administrative Agent for the account of the Term
Lender or Term Lenders entitled thereto not later than 12:00 Noon
(New York time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office.  Whenever any payment to be made hereunder or
under any Term Note shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.


 


5.04A.              Net Payments.


 


(a)                                  Payments Free of
Indemnifiable Taxes.  All payments by
the Borrower hereunder and under any Term Note will be made free and clear of,
and without deduction or withholding for, any Indemnifiable Taxes, unless
required by applicable law.  If any
Indemnifiable Taxes are so levied or imposed, the Borrower agrees (i) to
pay the full amount of such Indemnifiable Taxes to the appropriate governmental
authority, (ii) to


 


28

















 


pay such additional amounts as necessary so
that the net amount actually received by the Lender under this Agreement or
under any Term Note, after withholding or deduction for or on account of any
Indemnifiable Taxes, will be equal to the amount that the Lender would have
received had no such deduction or withholding been required, and (iii) to
furnish to the Administrative Agent evidence of payment by the Borrower of
Indemnifiable Taxes reasonably satisfactory to the Administrative Agent within
45 days after the date such payment is due under applicable law.  If any amounts that are payable in respect of
Indemnifiable Taxes pursuant to the preceding sentence are paid by a Term
Lender, the Borrower agrees to reimburse the Term Lender, upon the written
request of such Term Lender, for such Indemnifiable Taxes.


 


(b)                                 Documentation.  Each Foreign Lender agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Amendment No. 2
Effective Date or, in the case of a Foreign Lender that is an assignee or transferee
of an interest under this Agreement pursuant to Section 2.11A or 13.04(b) (unless
the respective Term Lender was already a Term Lender hereunder immediately
prior to such assignment or transfer), on the date of such assignment or transfer
to such Term Lender, (i) two accurate and complete original signed copies
of IRS Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) (or successor forms) certifying such Term
Lender’s entitlement as of such date to a complete exemption from
United States withholding tax with respect to payments to be made under
this Agreement and under any Term Note, (ii) if the Foreign Lender is not
a “bank” within the meaning of Section 881(c)(3)(A) of the Code and
cannot deliver either IRS Form W-8ECI or Form W-8BEN or successor
forms pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D-1 (any such certificate, a “Section 5.04A(b)(ii) Certificate”)
and (y) two accurate and complete original signed copies of IRS Form W-8BEN
(with respect to the “portfolio interest exemption”) (or successor form)
certifying such Term Lender’s entitlement as of such date to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Term Note, or (iii) two
accurate and complete original signed copies of IRS Form W-8IMY (together
with the form and certificates described in clauses (i) and (ii)), as
required.  Each Term Lender that is not a
Foreign Lender agrees to deliver to the Borrower and the Administrative Agent
on or prior to the Effective Date or, in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section 2.11A
or 13.04(b) (unless the respective Term Lender was already a Term Lender
hereunder immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Term Lender two accurate and complete
original signed copies of IRS Form W-9 establishing that the Lender is not
subject to U.S. backup withholding tax. 
In addition, each Lender agrees that when a lapse in time or change in
circumstances renders its previous certification obsolete or inaccurate in any
material respect or upon reasonable request by the Borrower or Administrative
Agent, such Lender will (A) deliver to the Borrower and the Administrative
Agent two new accurate and complete original signed copies of the applicable certification
under this Section 5.04A(b) and such other forms as may be required
to confirm or establish the entitlement of such Term Lender to a continued
exemption from or reduction in United States withholding tax, or (B) immediately
notify the Borrower and the Administrative Agent of its inability to deliver


 


29

















 


any such certification, in which case such
Term Lender shall not be required to deliver any such certification pursuant to
this Section 5.04A(b).


 


(c)                                  Refunds.  If the Administrative Agent or any Term
Lender determines, in its sole discretion, that it has received a refund of any
Indemnifiable Taxes with respect to which the Borrower has paid amounts
pursuant to Section 5.04A(a), it shall pay over such refund to the Borrower,
net of all out-of-pocket expenses of the Administrative Agent and such Term
Lender, provided, however, that the Borrower agrees to repay such
amount to the Administrative Agent or Term Lender, as the case may be, together
with any applicable interest and penalties, if the Administrative Agent or Term
Lender is required to repay such refund to such taxing authority.  This paragraph shall not be construed to
require the Administrative Agent or any Term Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower.


 


30














 


(g)                                 Section 8.08 of the
Credit Agreement shall be amended by inserting the following immediately after Section 8.08(a):


 


(a-1) Until May 31, 2009, proceeds of the Term Loans will be
used by the Borrower solely for Convertible Note Retirement or for the payment
of fees and costs incurred in connection therewith (including those incurred in
or for or in connection with Amendment No. 2 or the arrangement of the
Term Loans or the completion of the Equity Offering referred to in Amendment No. 2),
and, to the extent proceeds of the Term Loans are not disbursed for such use on
the date the Term Loans are made, the Borrower will hold the unused proceeds of
Term Loans in the Special Account until disbursed for such use.  Any remaining unused proceeds of the Term Loans
held in the Special Account on June 1, 2009 may be withdrawn and used by
the Borrower for any purpose.  All
funding for Convertible Note Retirement or the payment of such fees and costs
will be deemed to have been sourced and derived first from proceeds of Term
Loans, and not from proceeds of such Equity Offering or other sources of funds,
until the proceeds of Term Loans are depleted. 
Except for the restrictions as to use of proceeds of the Term Loans set
forth above in this Section 8.08(a-1), the Borrower and its Subsidiaries
will not be in any respect restricted as to the withdrawal or use of any
deposits or securities entitlements held in the Special Account, including all
proceeds of such Equity Offering, all proceeds of Revolving Loans and all other
cash or Cash Equivalents not constituting Term Loan proceeds held in the
Special Account, and the Borrower will have the unrestricted and unconditional
right to withdraw and use any or all such deposits or securities entitlements
at any time and from time to time for any purpose.


 


31

















 


(h)                                 The last sentence of Section 8.20
of the Credit Agreement shall be amended, in order to clarify and confirm the
intention of the parties to the Credit Agreement in respect of the
interpretation of such sentence, by replacing such sentence in its entirety
with the following:


 


No other Indebtedness has been incurred by
the Borrower or its Subsidiaries since October 31, 2005, except for
Indebtedness incurred for borrowed money in connection with the Transaction and
Indebtedness permitted to be incurred under Section 10.04.


 


32

















 


(i)                                     Section 9.01(d) of
the Credit Agreement shall be amended by deleting the words “Excess Cash Flow”
and replacing them with “Excess Cash Flow Payment Amount.”


 


33

















 


(j)                                     Section 10.03
of the Credit Agreement shall be amended by deleting the word “authorize,”
appearing immediately before the phrase “declare or pay” in such Section.


 


34

















 


(k)                                  Section 10.09
of the Credit Agreement shall replaced with the following:


 


Total Leverage Ratio.  The Borrower will not permit the Total
Leverage Ratio during a period set forth below to be greater than the ratio set
forth opposite such period below:


 




	
  Period

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  From
  the Initial Borrowing Date through and including the day before the Amendment
  No. 2 Effective Date

  	
   

  	
  4.50:1

  
	
   

  	
   

  	
   

  
	
  From
  the Amendment No. 2 Effective Date through and including the last day of
  the Borrower’s fiscal quarter ending April 30, 2009

  	
   

  	
  4.25:1

  
	
   

  	
   

  	
   

  
	
  From
  the first day of the Borrower’s fiscal quarter ending July 31, 2009
  through and including the last day of the Borrower’s fiscal quarter ending
  April 30, 2010

  	
   

  	
  4.00:1

  
	
   

  	
   

  	
   

  
	
  From
  the first day of the Borrower’s fiscal quarter ending July 31, 2010
  through and including the last day of the Borrower’s fiscal quarter ending
  April 30, 2011

  	
   

  	
  3.75:1

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  3.50:1

  






 


35

















 


(l)                                   Section 12
of the Credit Agreement shall be amended by adding the following new clause
12.11:


 


12.11.                  Withholding Tax Indemnity.  To the extent required by applicable law, the
Administrative Agent may withhold from any payment to any Lender (including an
Issuing Lender for purposes of this Section 12.11) an amount equivalent to
any applicable withholding tax.  If the
IRS or any other authority of the U.S. or other jurisdiction asserts a claim
that the Administrative Agent did not properly withhold Tax from amounts paid
to or for the account of any Lender for any reason (including because the
appropriate form was not delivered or not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstance
that rendered the exemption from, or reduction of, withholding tax
ineffective), such Lender shall indemnify and hold harmless the Administrative
Agent (to the extent that the Agent has not already been reimbursed by the
Borrower pursuant to Section 5.04 or 5.04A, and without limiting the
obligation of the Borrower to do so) for all amounts paid, directly or indirectly,
by the Administration Agent as Taxes (including interest, penalty or any
addition thereto) or otherwise, together with all expenses incurred, including
legal expenses and any other out-of-pocket expenses, whether or not such Tax
was correctly or legally imposed or asserted by the relevant governmental authority.  A certificate as to the amount of such
payment or liability delivered to any Lender by the Administrative Agent shall
be conclusive absent manifest error.


 


36

















 


(m)                             Section 13
of the Credit Agreement shall be replaced with the following:


 


SECTON 13.  Miscellaneous.


 


13.01.                  Payment of Expenses, etc.  The Borrower hereby agrees to:  (i) pay
all reasonable out-of-pocket costs and expenses of the Administrative Agent and
the Collateral Agent (including the reasonable fees and disbursements of Cahill
Gordon & Reindel LLP) in connection with the preparation, execution
and delivery of this Agreement and the other Credit Documents and the documents
and instruments referred to herein and therein and any amendment, waiver or
consent relating hereto or thereto (provided that in the case of this
clause (i) only, the Borrower shall only be required to reimburse one counsel
to the Administrative Agent and one local counsel in each relevant jurisdiction
in which the Borrower or any of its Subsidiaries is organized as deemed
reasonable and necessary by the Administrative Agent); (ii) after the
occurrence of an Event of Default, pay all reasonable out-of-pocket costs and expenses
of the Administrative Agent, the Collateral Agent and each of the Issuing
Lenders and Lenders in connection with the enforcement of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the nature of a “work-out”
or pursuant to any insolvency or bankruptcy proceedings (including, in each
case without limitation, the reasonable fees and disbursements of counsel and
consultants for the Administrative Agent and, after the occurrence of an Event
of Default, counsel for each of the Issuing Lenders and each of the Lenders); (iii) pay
and hold the Administrative Agent, the Collateral Agent, each of the Issuing
Lenders and each of the Lenders harmless from and against any and all present
and future stamp, excise and other similar documentary taxes with respect to
the foregoing matters and save the Administrative Agent, the Collateral Agent,
each of the Issuing Lenders and each of the Lenders harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to the Administrative Agent, the
Collateral Agent, such Issuing Lender or such Lender) to pay such taxes; and (iv) indemnify
the Administrative Agent, the Collateral Agent, each Issuing Lender and each
Lender, and each of their respective officers, directors, employees,
representatives, agents, affiliates, trustees and investment advisors, from and
hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys’ and consultants’ fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of,
or in any way related to, or by reason of, (a) any investigation,
litigation or other proceeding (whether or not the Administrative Agent, the
Collateral Agent, any Issuing Lender or any Lender is a party thereto and
whether or not such investigation, litigation or other proceeding is brought by
or on behalf of any Credit Party) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
the Transaction or any other transactions contemplated herein or in any other
Credit Document or the exercise of any of their rights or remedies provided
herein or in the other Credit Documents, or (b) the actual or alleged presence
of Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface 


 


37

















 


of any Real Property at any
time owned, leased or operated by the Borrower or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous
Materials by the Borrower or any of its Subsidiaries at any location, whether
or not owned, leased or operated by the Borrower or any of its Subsidiaries,
the non-compliance by the Borrower or any of its Subsidiaries with any
Environmental Law (including applicable permits thereunder) applicable to any
Real Property, or any Environmental Claim asserted against the Borrower, any of
its Subsidiaries or any Real Property at any time owned, leased or operated by
the Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified (as determined by a court of
competent jurisdiction in a final and non-appealable decision)).  To the extent that the undertaking to
indemnify, pay or hold harmless the Administrative Agent, the Collateral Agent,
any Issuing Lender or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.


 


13.02                     Right of Setoff.  In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent, the Collateral Agent, each Issuing Lender
and each Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by the Administrative Agent, the
Collateral Agent, such Issuing Lender or such Lender (including by branches and
agencies of the Administrative Agent, the Collateral Agent, such Issuing Lender
or such Lender wherever located) to or for the credit or the account of the
Borrower or any of its Subsidiaries against and on account of the Obligations
and liabilities of the Credit Parties to the Administrative Agent, the Collateral
Agent, such Issuing Lender or such Lender under this Agreement or under any of
the other Credit Documents, including all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not the Administrative Agent, the
Collateral Agent, such Issuing Lender or such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.


 


13.03                     Notices.  Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including by telecopier or electronic image-scan communication) and
mailed, telecopied, e-mailed or delivered: 
if to any Credit Party, at the address, telecopier number or e-mail
address specified opposite its signature below or in the other relevant Credit
Documents; if to any Lender, at its address specified on Schedule I to this
Agreement, Schedule I to Amendment No. 2 or in 


 


38

















 


the Joinder Agreement it
signs to provide a Term Loan; and if to the Administrative Agent, at the Notice
Office; or, as to any Credit Party or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties hereto and, as to each Lender, at such other address as shall be
designated by such Lender in a written notice to the Borrower and the
Administrative Agent.  All such notices
and communications shall, when mailed, telegraphed, telecopied or cabled or
sent by overnight courier, be effective when deposited in the mails, delivered
to the telegraph company, cable company or overnight courier, as the case may
be, or sent by telecopier, except that notices and communications to the
Administrative Agent and the Borrower shall not be effective until received by
the Administrative Agent or the Borrower, as the case may be.


 


13.04.                  Benefit of
Agreement; Assignments; Participations.


 


(a)                                This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided, however,
that the Borrower may not assign or transfer any of its rights, obligations or
interest hereunder without the prior written consent of the Lenders and provided,
further, that, although each Lender may transfer, assign or grant
participations in its rights hereunder, such Lender shall remain a “Lender” for
all purposes hereunder (and may not transfer or assign all or any portion of
its Commitments hereunder except as provided in Sections 2.12 (as to any RL
Lender), 2.12A (as to any Term Lender) and 13.04(b)) and the transferee,
assignee or participant, as the case may be, shall not constitute a “Lender”
hereunder and provided, further, that no Lender shall transfer or grant any participation under
which the participant shall have rights to approve any amendment to or waiver
of this Agreement or any other Credit Document except to the extent such amendment
or waiver would (i) extend the final scheduled maturity of any Loan, Note
or Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Loan Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial definitions in
this Agreement or to Section 13.07(a) shall not constitute a reduction in
the rate of interest or Fees payable hereunder), or increase the amount of the
participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Revolving Loan Commitment or repayment of Loans shall
not constitute a change in the terms of such participation, and that an
increase in any Revolving Loan Commitment (or the available portion thereof) or
Loan shall be permitted without the consent of any participant if the
participant’s participation is not increased as a result thereof) or (ii) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all
of the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans or Letters of Credit hereunder
in which such participant is participating. 
In the case of any such participation, the participant shall not have
any rights under this Agreement or any of the other Credit Documents (the
participant’s rights against such Lender in respect of such participation to 


 


39

















 


be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if
such Lender had not sold such participation.


 


(b)                                 Notwithstanding the
foregoing, any Lender may (x) assign all or a portion of its Revolving
Loan Commitments and related outstanding Obligations hereunder and/or its Term
Loans and related outstanding Obligations hereunder to (i) its parent
company and/or any affiliate of such Lender which is at least 50% owned by such
Lender or its parent company, or (ii) in the case of any Lender that is a
fund that invests in loans, any other fund that invests in loans and is managed
or advised by the same investment advisor of any Lender or by an Affiliate of
such investment advisor or (y) assign all or, if less than all, a portion
equal to at least $1.0 million (or such lesser amount as shall be agreed by the
Administrative Agent) in the aggregate for the assigning Lender or assigning
Lenders of such Revolving Loan Commitments and related outstanding Obligations
hereunder or at least $1.0 million (or such lesser amount as shall be agreed by
the Administrative Agent) in the aggregate from the assigning lender or
assigning Lenders of such Term Loans and related outstanding Obligations
hereunder, in each case to one or more Eligible Transferees (treating any fund
that invests in loans and any other fund that invests in loans and is managed
or advised by the same investment advisor of such fund or by an Affiliate of
such investment advisor as a single Eligible Transferee), each of which
assignees shall become a party to this Agreement as a Lender by execution of an
Assignment and Assumption Agreement, provided that (i) at such
time, Schedule I shall be deemed modified to reflect the Revolving Loan
Commitments and/or outstanding Loans, as the case may be, of such new Lender
and of the existing Lenders, (ii) upon the surrender of the relevant Notes
by the assigning Lender (or upon such assigning Lender’s indemnifying the Borrower
for any lost Note pursuant to a customary indemnification agreement), new Notes
will be issued, at the Borrower’s expense, to such new Lender and to the
assigning Lender upon the request of such new Lender or assigning Lender, such
new Notes to be in conformity with the requirements of Section 2.04 or
2.04A (with appropriate modifications) to the extent needed to reflect the
revised Revolving Loan Commitments and/or outstanding Loans, as the case may
be, (iii) the consent of the Administrative Agent shall be required in
connection with any such assignment pursuant to clause (y) above (which
consent shall not be unreasonably withheld or delayed), (iv) the
Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Lender, the payment of a non-refundable assignment
fee of $3,500 and (v) no such transfer or assignment will be effective
until recorded by the Administrative Agent on the Register pursuant to Section 13.15.  To the extent of any assignment pursuant to
this Section 13.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Revolving Loan Commitments
and outstanding Loans.  At the time of
each assignment pursuant to this Section 13.04(b) to a Person that is
not already a Lender hereunder, the assignee Lender shall comply with the
requirements of Section 5.04 or Section 5.04A and shall, to the
extent legally entitled to do so, provide to the Borrower and the
Administrative Agent the appropriate IRS Forms (and, if applicable, a Section 5.04(b)(ii) Certificate
or Section 5.04A(b)(ii) Certificate) described in Section 5.04(b) or
5.04A(b) and information requested under the Patriot Act.  To the extent that an assignment of all or any
portion of the Lender’s Revolving Loan Commitments 


 


40

















 


and related outstanding
Obligations or Term Loans and related outstanding Obligations pursuant to this Section 13.04(b)
would, at the time of such assignment, result in increased costs under Section 2.09,
2.09A, 3.06, 5.04 or 5.04A from those being charged by the assigning Lender
prior to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant to the
other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).


 


(c)                                  Nothing in this Agreement
shall prevent or prohibit any Lender from pledging its Loans and Notes
hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank and, with prior notification to the
Administrative Agent (but without the consent of the Administrative Agent or
the Borrower), any Lender which is a fund may pledge all or any portion of its
Loans and Notes to its trustee or to a collateral agent providing credit or
credit support to such Lender in support of its obligations to such trustee,
such collateral agent or a holder of such obligations, as the case may be.  No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder.


 


13.05.                  No Waiver; Remedies
Cumulative.  No failure
or delay on the part of the Administrative Agent, the Collateral Agent, any
Issuing Lender or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrower or any other Credit Party and the Administrative Agent, the
Collateral Agent, any Issuing Lender or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder.  The rights, powers
and remedies herein or in any other Credit Document expressly provided are cumulative
and not exclusive of any rights, powers or remedies which the Administrative
Agent, the Collateral Agent, any Issuing Lender or any Lender would otherwise
have.  No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of the Administrative Agent, the Collateral Agent, any Issuing
Lender or any Lender to any other or further action in any circumstances without
notice or demand.


 


13.06.                  Payments Pro
Rata.


 


(a)                                Except as
otherwise provided in this Agreement, the Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations hereunder, the Administrative Agent shall distribute
such payment to the Lenders entitled thereto (other than any Lender that has
consented in writing to waive its pro  rata share of any such
payment) pro  rata based upon their respective shares, if any, of
the Obligations with respect to which such payment was received.


 


(b)                               Each of the
Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right
of setoff or banker’s lien, by counterclaim or cross-action, by the enforcement
of any 


 


41

















 


right under the Credit
Documents, or otherwise), which is applicable to the payment of the principal
of, or interest on, the Loans, Unpaid Drawings, Commitment Commission or Letter
of Credit Fees, of a sum which with respect to the related sum or sums received
by other Lenders is in a greater proportion than the total of such Obligation
then owed and due to such Lender bears to the total of such Obligation then
owed and due to all of the Lenders immediately prior to such receipt, then such
Lender receiving such excess payment shall purchase for cash without recourse
or warranty from the other Lenders an interest in the Obligations of the
respective Credit Party to such Lenders in such amount as shall result in a
proportional participation by all the Lenders in such amount; provided
that if all or any portion of such excess amount is thereafter recovered from
such Lenders, such purchase shall be rescinded and the purchase price restored
to the extent of such recovery, but without interest.


 


(c)                                  Notwithstanding anything to
the contrary contained herein, the provisions of the preceding Sections 13.06(a) and
(b) shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting Lenders as
opposed to Defaulting Lenders.


 


13.07.                  Calculations;
Computations.


 


(a)                                  The financial statements to
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); provided, however, that if there
occurs after the date hereof any change in GAAP that affects in any respect the
calculation of Excess Cash Flow, the Applicable Margin or any covenant
contained in Sections 10.08 and 10.09, the Lenders and the Borrower shall
negotiate in good faith amendments to the provisions of this Agreement that
relate to the calculation of such covenant with the intent of having the
respective positions of the Lenders and the Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the date of
this Agreement.


 


(b)                                 All computations of
interest, Commitment Commission and other Fees hereunder shall be made on the
basis of a year of 360 days (except for interest calculated by reference to the
Prime Lending Rate, which shall be based on a year of 365 or 366 days, as
applicable) for the actual number of days (including the first day but
excluding the last day; except that in the case of Letter of Credit Fees and
Facing Fees, the last day shall be included) occurring in the period for which
such interest, Commitment Commission or Fees are payable.


 


13.08.                  GOVERNING LAW;
SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.


 


(a)                                  THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE 


 


42

















 


LAW OF THE STATE OF
NEW YORK.  ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF
NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS.  THE BORROWER HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION
OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF
THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER THE
BORROWER.  THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING.  EACH CREDIT
PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, ANY LENDER OR THE HOLDER OF ANY
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.


 


(b)                                 EACH CREDIT PARTY HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN
THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


(c)                                  EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS 


 


43

















 


AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


13.09.                  Counterparts.  This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.  A set of counterparts executed by all the
parties hereto shall be lodged with the Borrower and the Administrative Agent.


 


13.10.                  Effectiveness.  This Agreement shall become effective on the
date (the “Effective Date”) on which the Borrower, the Administrative
Agent, the Arrangers and each of the Lenders shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
the same to the Administrative Agent at the Notice Office or, in the case of
the Lenders, shall have given to the Administrative Agent telephonic (confirmed
in writing), written or telex notice (actually received) at such office that
the same has been signed and mailed to it. 
The Administrative Agent will give the Borrower and each Lender prompt
written notice of the occurrence of the Effective Date.


 


13.11.                  Headings Descriptive.  The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this Agreement.


 


13.12.                  Amendment or
Waiver; etc.


 


(a)                                Neither this
Agreement nor any other Credit Document nor any terms hereof or thereof may be
changed, waived, discharged or terminated unless such change, waiver, discharge
or termination is in writing signed by the respective Credit Parties party
hereto or thereto and the Required Lenders (although additional parties may be
added to (and annexes may be modified to reflect such additions), and
Subsidiaries of the Borrower may be released from, the Guaranty and the
Security Documents in accordance with the provisions hereof and thereof without
the consent of the other Credit Parties party thereto or the Required Lenders),
provided that no such change, waiver, discharge or termination shall,
without the written consent of each Lender (with Obligations being directly
affected in the case of following clause (i)), (i) extend the final
scheduled maturity of any Loan or Note, or extend the stated expiration date of
any Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the
rate or extend the time of payment of interest or Fees thereon (except in
connection with the waiver of applicability of any post-default increase in
interest rates), or reduce the principal amount thereof (it being understood
that any amendment or modification to the financial definitions in this
Agreement or to Section 13.07 shall not constitute a reduction in the rate
of interest or Fees for the purposes of this clause (i)), (ii) release (x) all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents) under the Security Documents or (y) all or substantially
all of the Guarantors from their guarantee obligations under the Guaranty, (iii) amend,
modify or waive any provision of this Section 13.12 (except for technical
amendments with respect to additional extensions of credit pursuant to this
Agreement which afford the protections to such additional extensions of credit
of the type provided to the Revolving Loan Commitments on the Effective Date or
provided to 


 


44

















 


the Term Loans on the
Amendment No. 2 Effective Date, as applicable), (iv) reduce the
percentage specified in the definition of Required Lenders (it being understood
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the extensions of Revolving Loan
Commitments are included on the Effective Date and the Term Loans are included
on the Amendment No. 2 Effective Date) or (v) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided, further, that no such change, waiver, discharge
or termination shall (1) increase the Revolving Loan Commitments or Term
Loans of any Lender over the amount thereof then in effect without the consent
of such Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Revolving Commitment shall not constitute an increase of the
Revolving Loan Commitment of any Lender, and that an increase in the available
portion of any Revolving Loan Commitment of any Lender shall not constitute an
increase of the Revolving Loan Commitment of such Lender), (2) without the
consent of each Issuing Lender, amend, modify or waive any provision of Section 2
or alter its rights or obligations with respect to Letters of Credit, (3) without
the written consent of the Swingline Lender, alter the Swingline Lender’s
rights or obligations with respect to Swingline Loans, (4) without the
written consent of the Administrative Agent, amend, modify or waive any
provision of Section 10 or any other provision as same relates to the
rights or obligations of the Administrative Agent, (5) without the written
consent of the Collateral Agent, amend, modify or waive any provision relating
to the rights or obligations of the Collateral Agent, (6) reduce the
amount of, or extend the date of, any Scheduled Repayment or make any change to
Section 5.02A without the consent of the Lenders holding a majority in
aggregate amount of the Term Loans, or (7) amend, modify or waive any
provision of Section 7 (including amendment, modification or waiver of any
representation or warranty referenced in Section 7.01(ii)) in any manner
that would permit a Credit Event that would not otherwise be permitted without
the consent of the Lenders holding a majority in aggregate amount of the Total
Revolving Loan Commitment.


 


(b)                                 If, in connection with any
proposed change, waiver, discharge or termination of or to any of the
provisions of this Agreement as contemplated by clauses (i) through (iii),
inclusive, of the first proviso to Section 13.12(a), the consent of the Required
Lenders is obtained but the consent of one or more of such other Lenders whose
consent is required is not obtained, then the Borrower shall have the right, so
long as all non-consenting Lenders whose individual consent is required are
treated as described in either clause (A) or (B) below, to either (A) replace
each such non-consenting Lender or Lenders (or, at the option of the Borrower,
if the respective Lender’s consent is required with respect to less than all
Tranches of Loans (or related Revolving Loan Commitments), to replace only the
Revolving Loan Commitments and/or Loans of the respective non-consenting Lender
which gave rise to the need to obtain such Lender’s individual consent) with
one or more Replacement Lenders pursuant to Section 2.12 or one or more
Replacement Term Lenders pursuant to Section 2.12A so long as at the time
of such replacement, each such Replacement Lender or Replacement Term Lender
consents to the proposed change, waiver, discharge or termination or (B) terminate
such non-consenting 


 


45

















 


Lender’s Revolving Loan
Commitment (if such Lender’s consent is required as a result of its Revolving
Loan Commitment) and/or repay any or all of each Tranche of outstanding Loans
of such Lender which gave rise to the need to obtain such Lender’s consent
and/or cash collateralize its applicable RL Percentage of the Letter of Credit
of Outstandings, in accordance with Sections 4.02(b), provided
that, unless the Revolving Loan Commitments which are terminated and Loans
which are repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Revolving Loan Commitments and/or outstanding Loans of existing
Lenders (who in each case must specifically consent thereto), then in the case
of any action pursuant to preceding clause (B), the Required Lenders
(determined after giving effect to the proposed action) shall specifically
consent thereto, provided, further, that the Borrower shall not have the
right to replace a Lender, terminate its Revolving Loan Commitment or repay its
Loans solely as a result of the exercise of such Lender’s rights (and the
withholding of any required consent by such Lender) pursuant to the second proviso
to Section 13.12(a).


 


13.13.                  Survival.  All indemnities set forth herein including in
Sections 2.09, 2.10, 2.09A, 2.10A, 5.04, 5.04A, 12.06 and 13.01 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.


 


13.14.                  Domicile of Loans.  Each Lender may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such
Lender.  Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to
this Section 13.14 would, at the time of such transfer, result in
increased costs under Section 2.09, 2.10, 2.09A, 2.10A, 3.06, 5.04 or
5.04A from those being charged by the respective Lender prior to such transfer,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).


 


13.15.                  Register.  The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section 13.15,
to maintain a register (the “Register”) on which it will record the
Revolving Loan Commitments from time to time of each Lender, the Loans made by
each Lender and each repayment in respect of the principal amount of the Loan
of each Lender.  Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower’s
obligations in respect of such Loan. 
Entries in the Register shall be conclusive in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders may treat
each person whose name is recorded in the Register pursuant to the terms hereof
as Lender hereunder for all purposes of this Agreement, notwithstanding notices
to the contrary.  The transfer of the
rights to the principal of, and interest on, any Loan shall not be effective
until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Revolving Loan
Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Revolving Loan Commitments and Loans shall
remain owing to the transferor.  The
registration of assignment or 


 


46

















 


transfer of all or part of
any Loan shall be recorded by the Administrative Agent on the Register only
upon the acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b).  Coincident with the delivery of such an
Assignment and Assumption Agreement to the Administrative Agent for acceptance
and registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note (if any) evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender at the request of any such Lender.  The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or incurred
by the Administrative Agent in performing its duties under this Section 13.15.  The Register shall be available for
inspection by the Borrower, the Collateral Agent and any Lender (with respect
to its interest only) at any reasonable time and from time to time upon
reasonable notice.


 


13.16.                  Confidentiality.


 


(a)                                Subject to the
provisions of clause (b) of this Section 13.16, the Lender agrees
that it will use its reasonable efforts not to disclose without the prior
consent of the Borrower (other than to its employees, auditors, advisors or
counsel or to another Lender if such Lender or such Lender’s holding or parent
company in its sole discretion determines that any such party should have
access to such information, provided such
Persons shall be subject to the provisions of this Section 13.16 to the
same extent as such Lender) any information with respect to the Borrower or any
of its Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document, provided that any Lender may
disclose any such information (i) as has become generally available to the
public other than by virtue of a breach of this Section 13.16(a) by
such Lender, (ii) as may be required or appropriate in any report, statement
or testimony submitted to any municipal, state or Federal regulatory body
having or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors, (iii) as
may be required or appropriate in respect to any summons or subpoena or in
connection with any litigation, (iv) in order to comply with any law,
order, regulation or ruling applicable to such Lender, (v) to the Administrative
Agent or the Collateral Agent, (vi) to any direct or indirect contractual
counterparty in any swap, hedge or similar agreement (or to any such contractual
counterparty’s professional advisor), so long as such contractual counterparty
(or such professional advisor) agrees to be bound by the provisions of this Section 13.16,
and (vii) to any prospective or actual transferee or participant in
connection with any contemplated transfer or participation of any of the Notes
or Revolving Loan Commitments or Loans or any interest therein by such Lender, provided
that such prospective transferee agrees to be bound by the confidentiality provisions
contained in this Section 13.16.


 


(b)                               The Borrower
hereby acknowledges and agrees that each Lender may share with any of its
affiliates, and such affiliates may share with such Lender, any information


 


47

















 


related to the Borrower or
any of its Subsidiaries (including any non-public customer information
regarding the creditworthiness of the Borrower and its Subsidiaries), provided such Persons shall be subject to the
provisions of this Section 13.16 to the same extent as such Lender.


 


13.17.                  Special Provisions Regarding
Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not
Organized in the United States.  The parties hereto acknowledge and agree that
the provisions of the various Security Documents executed and delivered by the
Credit Parties require that, among other things, all promissory notes executed
by, and capital stock and other Equity Interests in, various Persons owned by
the Credit Parties (subject to the limitations set forth therein) be pledged,
and delivered for pledge, pursuant to the Security Documents.  The parties hereto further acknowledge and
agree that each Credit Party shall be required to take all actions under the
laws of the jurisdiction in which such Credit Party is organized to create and
perfect all security interests granted pursuant to the various Security
Documents and to take all actions under the laws of the United States and any
State, territory or district thereof to perfect the security interests in the
capital stock and other Equity Interests of, and promissory notes issued by,
any Person organized under the laws of said jurisdictions (in each case, to the
extent said capital stock, other Equity Interests or promissory notes are owned
by any Credit Party).  Except as provided
in the immediately preceding sentence, to the extent any Security Document
requires or provides for the pledge of promissory notes issued by, or capital
stock or other Equity Interests in, any Person organized under the laws of a
jurisdiction other than the United States or any State, territory or district
thereof, it is acknowledged that, as of the Initial Borrowing Date, no actions
have been required to be taken to create or perfect, under local law of the
jurisdiction of the Person who issued the respective promissory notes or whose
capital stock or other Equity Interests are pledged, under the Security
Documents.  All conditions and
representations contained in this Agreement and the other Credit Documents
shall be deemed modified to the extent necessary to effect the foregoing and so
that same are not violated by reason of the failure to take actions under local
law (but only with respect to capital stock of, other Equity Interests in, and
promissory notes issued by, Persons organized under laws of jurisdictions other
than the United States and any State, territory and district thereof) not
required to be taken in accordance with the provisions of this Section 13.17.


 


13.18.                  Integration.  This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Administrative Agent, the Arrangers
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent, the Arrangers or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Credit
Documents.  The Credit Documents
supersede all prior agreements (except the Fee Letter, dated as of September 29,
2006 among the Borrower, Deutsche Bank Trust Company Americas and Deutsche Bank
Securities Inc. (the “Fee Letter”)) and understandings, if any, relating
to the subject matter hereof and thereof.


 


13.19.                  USA Patriot Act.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law 


 


48

















 


October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that
identifies Credit Parties, which information includes the name and address of
each Credit Party and other information that will allow such Lender to identify
such Credit Party in accordance with the Act.


 


SECTION 3.                                     Representations
and Warranties.  The
Borrower represents and warrants to the Administrative Agent and to each of the
Lenders that:


 


(a)                                  This Amendment No. 2
has been duly executed and delivered by the Borrower and constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws generally
affecting creditors’ rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).


 


(b)                                 After giving
effect to this Amendment No. 2, the representations and warranties of each
Credit Party set forth in the Credit Documents are true and correct in all
material respects on and as of the Amendment No. 2 Effective Date, except
to the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties were true and
correct in all material respects as of such earlier date).


 


(c)                                  Immediately
after giving effect to this Amendment No. 2 and the funding of the Term
Loans on the Amendment No. 2 Effective Date, no Default or Event of Default
has occurred and is continuing.


 


(d)                                 Each Credit
Party hereby expressly acknowledges the terms of the Credit Agreement as
amended hereby and (i) ratifies and affirms after giving effect to this
Amendment its obligations under the Credit Documents executed by such Credit
Party, (ii) acknowledges, renews and extends its continued liability under
all such Credit Documents and agrees such Credit Documents remain in full force
and effect and (iii) agrees that the Security Documents secure all
obligations of the Credit Parties under the Credit Documents.


 


(e)                                  Each Credit
Party hereby reaffirms, as of the Amendment No. 2 Effective Date, (i) the
covenants and agreements contained in each Credit Document to which it is a
party, including, in each case, such covenants and agreements as in effect
immediately after giving effect to this Amendment and the transactions
contemplated hereby, and (ii) its guarantee of the Obligations pursuant to
the Guaranty and its grant of Liens on the Collateral to secure the Obligations
pursuant to the Security Documents.


 


SECTION 4.                                     Conditions to
Effectiveness and the Funding of the Term Loans.  This Amendment No. 2 shall become
effective on a date designated by the Borrower by written notice to the
Administrative Agent, which shall not be later than October 31, 2008, on
which each of the following conditions is or has been satisfied:


 


49














 


(i)            The Administrative Agent (or its counsel)
shall have received from the Required Lenders, the Borrower and the Guarantors,
a counterpart of this Amendment No. 2 (or in the case of a Lender, an
original or facsimile counterpart signature page hereto, which will be
enforceable as an original if transmitted by electronic means and will be
irrevocably delivered when received by the Administrative Agent) signed on behalf
of such party.


 


(ii)           The Administrative Agent shall have received
from the Borrower, for account of each RL Lender that delivers its executed
signature page to this Amendment No. 2 to the Administrative Agent no
later than 5:00 p.m. New York time on July 21, 2008, a fee equal to
0.50% of such RL Lender’s Revolving Loan Commitment at such time.


 


(iii)          All corporate and other proceedings taken or
to be taken in connection with this Amendment No. 2 and all documents
incidental thereto, whether or not referred to herein, shall be reasonably
satisfactory in form and substance to the Administrative Agent.


 


(iv)          The Administrative Agent shall have received
a supplement to the Perfection Certificate dated as of November 30, 2006
and delivered to the Collateral Agent in connection with the Credit Agreement
in the form of an officer’s certificate dated as of the Amendment No. 2 Effective
Date and executed by an Authorized Officer of the Borrower either confirming
that there has been no change in the information provided in the Perfection
Certificate delivered in connection with the Credit Agreement or providing such
updated information.


 


(v)           The Administrative Agent shall have received
such lien searches as the Administrative Agent reasonably deems necessary or
appropriate.


 


(vi)          The sum of (x) the aggregate gross
proceeds received by the Borrower from the issuance and sale of its common
stock in a public offering (the “Equity Offering”) after July 11,
2008 and (y) the aggregate amount of Term Loans committed by the Term
Lenders shall be at least $135.0 million.


 


(vii)         The Administrative Agent shall have received
evidence reasonably satisfactory to it that (i) the net proceeds from the
Term Loans, together with unrestricted cash and Cash Equivalents on hand of the
Borrower and the Guarantors and available drawings under the Revolving Loans
and the net proceeds from the Equity Offering, will be adequate to fund the
Borrower’s repurchase of all Convertible Notes that have been or may be
tendered for purchase pursuant to the Tender Offer and to pay the fees and
expenses associated therewith, and (ii) immediately after giving pro forma
effect to the funding of the Term Loans and repurchase of the Convertible Notes
pursuant to the Tender Offer (as if all outstanding Convertible Notes had been
tendered) and the payment of such fees and expenses, the sum of unrestricted
cash and Cash Equivalents of the Borrower and the Guarantors and available
drawings under the Revolving Loans would exceed $10,000,000.


 


(viii)        The Borrower shall have established the Special
Account subject to the Collateral Agent’s control pursuant to a control
agreement consistent with the provisions set forth in the definition of “Special
Account” and reasonably satisfactory to the Collateral Agent, and the Borrower
shall have made arrangements reasonably satisfactory to the Administrative
Agent for either (i) the application of the proceeds of the Term Loans to
the payment of the purchase


 


50

















 


price for
Convertible Notes tendered for purchase pursuant to the Tender Offer or (ii) the
transfer of proceeds of the Term Loans to the Special Account.


 


(ix)           The Administrative Agent shall have received
(i) from Latham & Watkins LLP, special counsel to the Borrower,
an opinion addressed to the Administrative Agent, the Collateral Agent and the
Lenders and dated the Amendment No. 2 Effective Date substantially in the
form attached as Exhibit 1, (ii) from Larkin Hoffman Daly &
Lindgren, Ltd., special Minnesota counsel to the Borrower, an opinion addressed
to the Administrative Agent, the Collateral Agent and the Lenders and dated the
Amendment No. 2 Effective Date substantially in the form attached as Exhibit 2
and (iii) from Jones Vargas, Nevada counsel to the Borrower, an opinion
addressed to the Administrative Agent, the Collateral Agent and the Lenders and
dated the Amendment No. 2 Effective Date substantially in the form
attached as Exhibit 3.(1)


 


(x)            The Borrower shall have paid all
reasonable out-of-pocket costs and expenses (including the expenses of Cahill
Gordon & Reindel LLP) of the Administrative Agent pursuant to Section 13.01
of the Credit Agreement, to the extent so demanded by the Administrative Agent
on or prior to the date hereof (without limitation or prejudice to the right of
the Administrative Agent to make any future demand).


 


Upon
satisfaction of the conditions precedent set forth above, the Administrative
Agent shall promptly notify the Borrower and the Lenders of its determination
that this Amendment No. 2 has become effective, which determination shall
be conclusive and binding on the Borrower and the Lenders for all purposes.


 


SECTION 5.            Credit Agreement.  Except as expressly set forth herein, this
Amendment No. 2 shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent, the Borrower or any other Credit Party under
the Credit Agreement or any other Credit Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement or any other Credit Document,
all of which are ratified and affirmed in all respects and shall continue in
full force and effect.  Nothing herein
shall be deemed to entitle the Borrower to any future consent to, or waiver, amendment,



 






(1)           Opinions will be to the
effect that giving effect to the execution and delivery of the Amendment, (i) the
security interest in each Credit Party’s Collateral continues to be a valid and
perfected security interest to the same extent as immediately prior to giving
effect to the execution and delivery of the amendment, and (ii) the
security interest in favor of the Collateral Agent (for the benefit of the
Secured Parties (including the Term Lenders in respect of the  Term Loans)) in each Loan Party’s Collateral
described in the Security Agreement is a valid security interest which is
perfected by the UCC-1 financing statements referenced in the opinion received
on the Effective Date and no additional UCC-1 financing statements are required
to be filed on the date hereof to perfect such security interest, and (iii) after
giving effect to the execution and delivery of the amendment, the Guaranty will
continue to be enforceable obligations of the Guarantors.


 


51

















 


modification
or other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Credit Document in
similar or different circumstances. 
After the Amendment No. 2 Effective Date, any reference to the
Credit Agreement shall mean the Credit Agreement as modified hereby, provided
that any reference in the Credit Agreement to the date of the Credit Agreement,
as modified hereby, shall in all instances remain as of November 30, 2006,
and references in the Credit Agreement to “the date hereof” and “the date of
this Agreement,” and phrases of similar import, shall in all instances be and
continue to refer to November 30, 2006, and not the date of this Amendment
No. 2.  This Amendment No. 2
shall constitute a “Credit Document” for all purposes of the Credit Agreement
and the other Credit Documents.


 


SECTION 6.            Joinder and Commitment of Term Lenders.  Each Initial Term Lender shall become party
to the Credit Agreement as a Lender and Term Lender when it delivers to the
Administrative Agent an original or facsimile counterpart signature page hereto
(which will be enforceable as an original if transmitted by electronic means
and will be irrevocably delivered when received by the Administrative Agent)
signed on behalf of such Initial Term Lender. 
Each other Term Lender may become a party to this Amendment No. 2
by joinder by delivering to the Administrative Agent on or prior to the
Amendment No. 2 Effective Date a Joinder Agreement duly executed by such
Term Lender, the Borrower and the Administrative Agent.  Each Term Lender who executes and delivers
such a Joinder Agreement on or prior to the Amendment No. 2 Effective Date
is hereby made party to the Credit Agreement (as amended hereby) as a Lender
and Term Lender thereunder.  Each Initial
Term Lender and each other Term Lender that becomes party to the Credit
Agreement hereby agree to make a Term Loan available to the Borrower in the
amount, on the terms and subject to the conditions set forth in the Credit Agreement
(as amended hereby).


 


SECTION 7.            Governing Law.  THIS AMENDMENT NO. 2 AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AMENDMENT NO. 2 MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH
CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS AMENDMENT NO. 2, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS.


 


SECTION 8.            Counterparts.  This Amendment No. 2 may be executed in any
number of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.  A set of counterparts executed by all the
parties hereto shall be lodged with the Borrower and the Administrative Agent.


 


52

















 


SECTION 9.            Headings.  The headings of the several sections and
subsections of this Amendment No. 2 are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of
this Amendment No. 2.


 


SECTION 10.          Severability.  Any provision of this Amendment No. 2
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.  The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 


53

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Amendment No. 2 to be duly executed by their respective authorized
officers as of the day and year first written above.


 


	
   

  	
  SHUFFLE MASTER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SHUFFLE MASTER INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SHUFFLE UP PRODUCTIONS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY

  AMERICAS, as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-2

















 


	
  To Approve Amendment No. 2:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DEUTSCHE BANK TRUST COMPANY

  	
   

  	
   

  
	
  AMERICAS,
  as a Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


I-3

















 


	
  To Approve Amendment No. 2:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
                                                ,
  as a Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


I-4

















 


	
  To Approve Amendment No. 2

  	
   

  	
   

  
	
  and to Become a Term Lender:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
                                         ,
  as a Term Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


I-5

















 


SCHEDULE I


 


TERM LOAN COMITMENTS


 


	
  Term Lender

  	
   

  	
  Term Loans

  	
   

  
	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  KEY BANK,
  N.A.

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
   

  	
   

  	
  $

  	
  60,000,000.00

  	
   

  



 


Notice Addresses:


 


Deutsche Bank Trust Company Americas, 100 Plaza One, 8th
Floor, Jersey City, New Jersey 07302, Attention:  [Juliet Cadiz]


 


Wachovia Bank, National Association,
[                              ]


 


Key Bank, N.A., [                                  ]


 


I-6

















 


ANNEX A


 


I-7